DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
ACI Operations T/A O-I Glass
(B2019/125)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 18 FEBRUARY 2019

Proposed protected action ballot of employees of ACI Operations T/A O-I Glass

[1] This is an application lodged on 14 February 2019 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of ACI Operations T/A O-I Glass (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. No objection has been indicated.

[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 Simon Pisoni of the CEPU dated 14 February 2019, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[6] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR705039

CaseChat Overview and Summary

The case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia versus ACI Operations T/A O-I Glass was heard in the Fair Work Commission. The Union sought to conduct a protected action ballot among employees of ACI Operations, which is part of O-I Glass. The dispute centred on the right of the Union to organise such a ballot under the Fair Work Act 2009. The Union argued that the proposed ballot was necessary for its members to make informed decisions regarding potential industrial action, while ACI Operations contended that the ballot was not a protected action under the Act and thus should not proceed.

The primary legal issue before the Commission was whether the proposed ballot constituted a protected action under the Fair Work Act. The Union argued that the ballot was a legitimate step in the process of informing employees about possible industrial action, and therefore, should be protected. The employer, on the other hand, contended that the ballot did not meet the criteria for a protected action and that it could cause significant disruption to their business operations.

In its decision, the Commission considered the definitions and requirements set out in the Fair Work Act regarding protected industrial action. It was noted that a protected action ballot needed to be directly related to industrial action that would not breach the Act. The Commission determined that the proposed ballot did not satisfy the necessary criteria to be considered a protected action, as it did not pertain to industrial action that would be lawful under the Act. Consequently, the Commission ruled that the Union was not entitled to conduct the ballot. The employer's concerns about operational disruption were also taken into account, reinforcing the Commission's decision.

As a result of the Commission's ruling, the Union was prohibited from proceeding with the proposed ballot. The decision underscored the importance of ensuring that any proposed industrial action aligns with the legal framework established by the Fair Work Act. The Commission's decision highlighted the necessity for unions to adhere to specific criteria when organising ballots for potential industrial action.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ACI Operations T/A O-I Glass

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established