Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Addelec Power Services Pty Ltd Summary

[2023] FWC 41

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

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

Addelec Power Services Pty Ltd

(B2023/9)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 9 JANUARY 2023

Proposed protected action ballot of employees of Addelec Power Services Pty Ltd

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

On 5 January 2023 my Associate sent an email to the Respondent requiring response, in the case of objection, by 11.00am 6 January 2023. To date, the Respondent has not replied outlining any objection 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 Duff 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 PR749442.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) applied for a protected action ballot order in relation to certain employees of Addelec Power Services Pty Ltd (Respondent). The matter was dealt with by Deputy President Clancy in Melbourne on 9 January 2023. The issue was whether the union's proposed ballot for protected action was lawful and if the conditions of section 437 of the Fair Work Act 2009 (Act) were met. The application was made under section 437 of the Act, which allows unions to apply for a ballot order when they have been engaged in good faith bargaining with an employer and have been unable to reach an agreement.

The legal issues before the court were whether the union had genuinely attempted to reach an agreement with the employer and whether the notification period for the proposed agreement had been met. The union's declaration, which stated that they had been genuinely trying to reach an agreement with the employer and had followed the necessary steps, was taken into consideration. The Respondent did not object to the application, and the matter was determined on the papers without holding a hearing. The Deputy President was satisfied that the notification time in relation to the proposed agreement had been met and that the requirements of section 443(1) of the Act were fulfilled.

The court found in favour of the union and issued a protected action ballot order. The decision was made based on the material before the court, including the union's declaration and the lack of objection from the employer. The union had demonstrated that it had genuinely attempted to reach an agreement with the employer and that the notification period for the proposed agreement had been met. The Deputy President concluded that the requirements of section 437 of the Act were satisfied, and a ballot order was issued. The orders were separately issued in PR749442.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established