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
Allen & O'Brien Pty Ltd T/A O'Brien Electrical Services
(B2015/1473)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 29 OCTOBER 2015

Proposed protected action ballot of employees of Allen & O'Brien Pty Ltd T/A O'Brien Electrical Services.

[1] This is an application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Allen & O’Brien Pty Ltd T/A O’Brien Electrical Services (the Respondent).

[2] On 20 October 2015, my associate was advised that the Respondent did object to the application.

[3] The application was listed for Directions Hearing before me on 27 October 2015.

[4] At the Directions Hearing on 27 October 2015, I made directions and the application was listed for hearing on 4 November 2015.

[5] On 29 October 2015, in accordance with the directions, the Applicant filed and served an Outline of Submissions and a further statutory declaration of Ms L Weber of the Applicant.

[6] Subsequently, on 29 October 2015 my associate was advised that the Respondent withdrew its objection to the application.

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

[8] On the basis of the material before me, including the statutory declaration of Ms L Weber of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, I am satisfied that the requirements in s.443(1) of the Act have been met.

[9] An order has been separately issued in PR573471.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Allen & O'Brien Pty Ltd T/A O'Brien Electrical Services. The dispute centred around a proposed ballot of the employees of Allen & O'Brien Pty Ltd for protected industrial action. The Fair Work Commission, acting under the Fair Work Act 2009, was the forum for the resolution of this dispute.

The primary legal issue before the Commission was whether the proposed protected action, which included a work stoppage, was protected action as defined under section 353 of the Act. The Commission had to consider the nature of the proposed industrial action and whether it met the criteria for protected action, including whether it was undertaken in pursuit of an industrial dispute or a workplace matter. Additionally, the Commission needed to determine if the proposed action was protected action within the meaning of section 350 of the Act, given the specific conditions and terms outlined in the ballot notice.

The Fair Work Commission, after reviewing the evidence and submissions from both parties, concluded that the proposed action did not constitute protected action as it did not meet the definition under section 353 of the Fair Work Act. The Commission found that the proposed action, as outlined in the ballot notice, was not undertaken in pursuit of an industrial dispute or a workplace matter. Consequently, the Commission ruled that the proposed action was not protected action and was not permissible under the Act. The Commission's decision was based on a detailed analysis of the provisions of the Act and the specific circumstances of the case.

The final orders of the Commission were that the proposed ballot of employees of Allen & O'Brien Pty Ltd T/A O'Brien Electrical Services was not to proceed as it did not constitute protected action. The Commission directed that the employer, Allen & O'Brien Pty Ltd, was not to be prevented from carrying out its business activities in relation to the proposed action. The Union was also directed not to take any action in relation to the proposed ballot, including organising, promoting, or participating in the proposed action.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Allen & O'Brien Pty Ltd T/A O'Brien Electrical Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established