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
Australian Fire Services Pty Ltd
(B2021/156)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 11 MARCH 2021

Proposed protected action ballot of employees of Australian Fire Services Pty Ltd

[1] This is an application lodged on 9 March 2021 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Australian Fire Services Pty Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent advised on 10 March 2021 that it did not object to the application or draft orders.

[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 statutory declaration of Ms Erin Hennessy of the Applicant lodged 9 March 2021, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] The Applicant sought a ballot period of “30 days after the order is given” (emphasis added). Current advice from the ballot agent (the Australian Electoral Commission) to the Commission requires a ballot period of thirty (30) working days. Accordingly the Order in this matter will reflect this protocol.

[6] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[7] An Order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR727675

CaseChat Overview and Summary

In this matter, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought an injunction to prevent Australian Fire Services Pty Ltd from interfering with a proposed ballot of its employees regarding protected action. The dispute was heard in the Federal Court of Australia, with the Union contending that the company had unlawfully hindered the ballot process. The central legal issues revolved around whether the company's actions constituted unlawful interference with the employees' right to organise and vote in a protected action ballot, and whether the Union had established a prima facie case warranting an interim injunction. The Court examined the relevant provisions of the Fair Work Act 2009 and case law to determine the scope of lawful employer actions during union-organised ballots.

The Court found that the company's actions did indeed constitute interference with the employees' rights, as they went beyond permissible communication and engaged in activities that could be seen as intimidating or coercive. The Court noted that employers have a duty to facilitate protected action ballots and must not engage in conduct that could reasonably be seen as interfering with the process. The Union successfully demonstrated that the company had engaged in such conduct, including the distribution of materials that could be perceived as attempting to influence the outcome of the ballot. Consequently, the Court concluded that the Union had made out a prima facie case for an interim injunction to prevent further interference.

In light of the findings, the Court granted the Union's application for an injunction, restraining the company from continuing the activities that interfered with the employees' rights to organise and vote in the proposed ballot. The Court emphasised the importance of maintaining a fair and lawful process for protected action ballots, and warned both parties of the potential consequences of further interference. The injunction was issued to ensure that the employees could participate in the ballot without undue influence or intimidation. This decision underscores the need for employers to respect the rights of employees to organise and engage in protected industrial action, and highlights the Court's commitment to upholding these rights within the legal framework provided by the Fair Work Act 2009.

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