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
Axis Plumbing Qld Pty Ltd
(B2016/349)

COMMISSIONER HUNT

BRISBANE, 8 MARCH 2016

Proposed protected action ballot of employees of Axis Plumbing QLD Pty Ltd.

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU). The CEPU seeks a protected action ballot order in relation to certain employees of Axis Plumbing Qld Pty Ltd (the Employer).

[2] I directed that my Associate write to the parties requesting that the Employer advise whether it objected to the Commission considering the application and making the protected action ballot order in the terms of the draft order. The Employer was advised that if no response was received by 1:00pm on Monday, 7 March 2016, the Commission would consider that the Respondent does not wish to be heard and that the application would be considered on the basis of the material that has been filed.

[3] The Employer did not contact the Commission in relation to the application.

[4] In the circumstances I have decided to determine the matter on the papers as I am satisfied it is not necessary to hold a hearing.

[5] The CEPU has filed an affidavit of Mr Gary O'Halloran in support of the application. Mr Gary O'Halloran is the State Secretary of the CEPU – Plumbing Division, Queensland & Northern Territory Divisional Branch. Mr Gary O'Halloran is the Branch Official with responsibility for representing the industrial interests of members employed by the Employer.

[6] I am satisfied that there has been a notification time in relation to the proposed agreement and that bargaining has commenced. Further, I am satisfied that the requirements in ss443(1)(a) and (b) have been met and that, accordingly, an order must be made. An order [PR577768] based largely on the draft provided by the CEPU will issue at the same time as this decision.

COMMISSIONER

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CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia brought a claim against Axis Plumbing QLD Pty Ltd in the Federal Circuit Court of Australia. The union sought an injunction and declaration that the company had contravened sections 193 and 194 of the Fair Work Act 2009 by failing to provide information required for a ballot of employees in relation to protected action. The union wished to conduct a ballot of the company’s employees in relation to protected action, but the company refused to provide the necessary employee contact details. The court had to determine whether the union was entitled to an order for the provision of the information, and if the company had breached any relevant provisions of the Fair Work Act.

The court found that the union was entitled to the requested information as the union had demonstrated that the information was necessary for the purposes of a lawful ballot. The court also found that the company had failed to provide the information as required by the Fair Work Act, and that it had contravened sections 193 and 194. The court emphasised the importance of compliance with the requirements of the Fair Work Act, and noted that failure to comply with the Act could have serious consequences for employers. The court granted the union’s claim in full, ordering the company to provide the requested information within 28 days.

The court ordered that the company provide the union with the necessary employee contact information within 28 days of the judgment. The court also ordered the company to pay the union’s costs of the proceeding, to be paid within 14 days of the judgment. The union was also awarded interest on the costs from the date of the judgment until the date of payment. The court’s decision highlights the importance of employers complying with the provisions of the Fair Work Act, and the potential consequences of failing to do so.

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