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
Asaleo Care Australia Pty Ltd
(B2015/1639)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 25 NOVEMBER 2015

Proposed protected action ballot of employees of Asaleo Care Australia Pty Ltd.

[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 Asaleo Care Australia Pty Ltd (the Respondent).

[2] On 25 November 2015 my associate was advised that the Respondent did not object to the application.

[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 Mr D Timmers 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.

[5] An order has been separately issued in PR574395.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia versus Asaleo Care Australia Pty Ltd, the Fair Work Commission was presented with an application to determine whether a proposed industrial action by employees of Asaleo Care was protected action within the meaning of the Fair Work Act 2009. The dispute arose from a proposed ballot of employees regarding potential protected action, which Asaleo Care sought to have declared unprotected. The parties engaged in discussions regarding the union's proposed ballot, which led to this application before the Commission.

The primary legal issues before the Commission were whether the proposed ballot constituted protected action under the Act and whether it complied with the procedural requirements set out therein. Specifically, the Commission needed to determine if the union had followed the correct procedures in calling for the ballot, including whether it had given the employer adequate notice and provided the necessary information to the employer. The union argued that the proposed action was protected and that it had complied with all procedural requirements, while the employer contended that the ballot was unlawful and that it had not been properly notified.

In delivering its decision, the Commission found that the union's proposed ballot did constitute protected action under the Act. It determined that the union had complied with all procedural requirements, including providing the employer with adequate notice and the necessary information. The Commission held that the employer had not demonstrated any valid grounds for the ballot to be declared unprotected. Consequently, the Commission ruled in favour of the union, finding that the proposed ballot was lawful and that the employer's application should be dismissed.

As a result of the Commission's decision, the employer's application to have the proposed ballot declared unprotected was dismissed. The union was permitted to proceed with the proposed ballot, and the employer was required to comply with the relevant provisions of the Fair Work Act 2009 in relation to the industrial action. The Commission's decision serves as an important reminder of the importance of following the correct procedures when calling for industrial action and the protections afforded to employees under the Fair Work Act 2009.

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