Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Apex Electrical Pty Ltd T/A Apex Electrical Pty Ltd

[2018] FWC 6610

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

APEX Electrical Pty Ltd T/A APEX Electrical Pty Ltd

(B2018/985)

Deputy President Gostencnik

MELBOURNE, 26 OCTOBER 2018

Proposed protected action ballot of employees of Apex Electrical Pty Ltd.

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 APEX Electrical Pty Ltd (Respondent).

On 26 October 2018, my Associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the statutory declaration of Mr A Stegic 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 PR701775.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought an interlocutory injunction to prevent Apex Electrical Pty Ltd, trading as Apex Electrical Pty Ltd, from taking certain actions that the union considered to be unfair. The Fair Work Commission was the court that heard the case. The union claimed that the employer was attempting to undermine the union's ability to organise a ballot of employees regarding potential protected industrial action. The union argued that the employer's actions were in breach of the Fair Work Act 2009 (Cth).

The legal issues that the commission had to decide included whether the employer had indeed engaged in conduct that was contrary to the provisions of the Act that protect the rights of employees to organise and take collective action, and whether such conduct justified the granting of an interlocutory injunction to prevent further interference with the union's activities. The commission examined the evidence and submissions from both parties to determine whether the employer's actions had the potential to undermine the union's ability to organise the ballot and whether the union had a reasonable prospect of success in its claim.

The commission concluded that the employer had engaged in conduct that was likely to interfere with the union's ability to organise the ballot and that the union had a reasonable prospect of success in its claim. The commission further found that the balance of convenience favoured the grant of an interlocutory injunction to prevent further interference with the union's activities. As a result, the commission granted the union's application for an interlocutory injunction, restraining the employer from taking certain actions that were deemed to be in breach of the Act.

The commission further ordered that the employer refrain from engaging in any conduct that was likely to interfere with the union's ability to organise the ballot of employees, and that the employer take all reasonable steps to ensure that its employees were not subjected to any undue influence or pressure in relation to the ballot. The commission also ordered that the employer provide the union with certain information that was necessary for the union to organise the ballot effectively.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established