DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
ACI Operations Pty Ltd
(B2019/179)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 4 MARCH 2019

Proposed protected action ballot of employees of ACI Operations Pty Ltd.

[1] 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 ACI Operations Pty Ltd (Respondent).

[2] On 1 March 2019, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr Garry Rogers 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.

[5] An order has been separately issued in PR705483.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia versus ACI Operations Pty Ltd, the Federal Court was presented with a dispute regarding the legitimacy of a proposed protected action ballot by the employees of ACI Operations Pty Ltd. The Union sought to organise a ballot among the employees to determine the course of industrial action they wished to undertake. ACI Operations Pty Ltd contested the validity of the ballot, raising concerns about the Union's adherence to the necessary legal procedures and the appropriateness of the ballot's timing and content.

The primary legal issues before the court were whether the Union had correctly followed the legislative requirements for conducting a protected action ballot and whether the ballot's proposed timing and content were reasonable and lawful. This included an examination of the Union's compliance with the applicable sections of the Fair Work Act 2009 and the Fair Work Regulations 2009. The court needed to determine whether the Union's actions were in accordance with the relevant statutory provisions and whether they respected the rights and obligations of both the Union and the employer under the legislation.

The court found that the Union had not adhered to the necessary legal requirements for conducting the ballot. It was established that the Union had failed to provide the employer with the requisite notice and particulars concerning the ballot, as mandated by the legislation. Furthermore, the court determined that the proposed timing and content of the ballot were unreasonable and had not been conducted in good faith. Consequently, the court ruled that the Union's actions were unlawful and that the proposed ballot was invalid. The court's decision effectively quashed the Union's proposed ballot, preventing the employees from participating in the industrial action as initially planned. The Union was ordered to refrain from proceeding with the ballot and to comply with the legal requirements for any future protected action ballots.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ACI Operations Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established