Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v

[2023] FWC 96

The attached document replaces the document previously issued with the above code on 13 January 2023.

All references to “T/A Comdain Infrastructure” are deleted.

Associate to Deputy President Clancy

17 January 2023

[2023] FWC 96

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v

Comdain Gas (Aust) Pty Ltd
Comdain Services Pty Ltd
(B2023/25)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 17 JANUARY 2023

Proposed protected action ballot of employees of Comdain Gas (Aust) Pty Ltd and Comdain Services Pty Ltd.

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Comdain Gas (Aust) Pty Ltd and Comdain Services Pty Ltd (Respondent).

On 13 of January 2023 my Associate was advised that the Respondent did not object to the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Mr Nicholas McCubbin of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An order has been separately issued in PR749637.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Comdain Gas (Aust) Pty Ltd and Comdain Services Pty Ltd. The application was made to facilitate a ballot for protected industrial action by the employees. The parties had been engaged in negotiations, but an impasse had been reached. The Commission was required to determine whether the applicant had satisfied the prerequisites for the grant of a ballot order, including that the applicant had genuinely attempted to reach agreement with the employer and that a notification period for protected action had elapsed.

The legal issues before the Commission included whether the applicant had genuinely attempted to reach agreement with the employer and whether a notification period for protected action had elapsed. The Commission considered the evidence provided by the applicant, including the declaration of Mr Nicholas McCubbin, who stated that the union had been genuinely trying to reach agreement with the employer. The Commission also considered the absence of any objection from the employer to the application, which was a relevant factor in determining whether a notification period had elapsed.

The Fair Work Commission was satisfied that the applicant had genuinely attempted to reach agreement with the employer and that a notification period for protected action had elapsed. The Commission noted that the employer had not objected to the application and that the applicant had provided evidence of its attempts to reach agreement. The Commission also noted that the applicant had complied with the requirements of the Act in relation to the notification period. As a result, the Commission decided to determine the matter on the papers without holding a hearing and granted the application for a protected action ballot order. The Commission noted that an order had been separately issued in PR749637.

This decision is an important reminder of the role of the Fair Work Commission in facilitating protected industrial action in Australia. The Commission has a responsibility to ensure that the requirements of the Fair Work Act are met before granting a ballot order, and this decision demonstrates the importance of genuine bargaining and compliance with the notification period requirements. The decision also highlights the importance of effective communication between employers and employees, and the need for both parties to work together to reach agreement and avoid the need for protected action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established