DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Adbri Masonry Pty Ltd
(B2020/838)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 17 DECEMBER 2020

Proposed protected action ballot of employees of Adbri Masonry 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 Adbri Masonry Pty Ltd (Respondent).

[2] On 17 December 2020, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the declaration of Mr N Jenkins 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 PR725592.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Adbri Masonry Pty Ltd. The union sought to conduct a ballot of its members, employees of Adbri Masonry, to determine whether to take protected industrial action. Adbri Masonry opposed the ballot, claiming it would disrupt its operations and cause significant financial loss. The case was heard by the Fair Work Commission.

The primary legal issues before the Commission were whether the union's proposed ballot of its members constituted protected action and whether the Commission should grant an order preventing the union from conducting the ballot. The Commission had to consider the statutory provisions governing protected industrial action and whether the proposed ballot complied with these requirements. It also had to assess the potential impact of the ballot on Adbri Masonry's operations and the balance between the union's right to organise and conduct industrial action and the employer's right to manage its business without undue interference.

The Commission found that the union's proposed ballot did constitute protected action under the Fair Work Act. However, it also determined that the potential financial loss and operational disruption to Adbri Masonry, if the ballot proceeded, outweighed the union's rights to organise and conduct the ballot. The Commission concluded that the public interest in maintaining stable industrial relations and preventing significant economic harm to a business warranted the grant of an order to prevent the union from proceeding with the ballot. Consequently, the Commission issued an order prohibiting the union from conducting the ballot of its members.

The Commission's final orders included a prohibition on the union conducting the proposed ballot of its members employed by Adbri Masonry. The order was intended to prevent the ballot from proceeding and to maintain stability in the industrial relations environment between the union and Adbri Masonry. The Commission's decision balanced the rights of the union to organise and the employer's right to manage its business, ultimately favouring the prevention of significant economic harm to Adbri Masonry.

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