Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Barwon Asset Solutions Pty Ltd Summary

[2018] FWC 3313

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

Barwon Asset Solutions Pty Ltd

(B2018/452)

Deputy President Gostencnik

MELBOURNE, 6 JUNE 2018

Proposed protected action ballot of employees of Barwon Asset Solutions Pty Ltd.

This is an application by the “Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia” known as the CEPU (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Barwon Asset Solutions Pty Ltd (Respondent).

On 6 June 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 T Knight 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 PR607882.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court heard a case between Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Barwon Asset Solutions Pty Ltd. The union sought to conduct a ballot of its members, who were employees of Barwon Asset Solutions, regarding potential protected industrial action. Barwon Asset Solutions contested the ballot, arguing that the union did not have the necessary authorisation to proceed with it. The Federal Court was tasked with determining the legality of the union's proposed ballot.

The primary legal issue before the court was whether the union had complied with the necessary legal requirements to conduct a protected action ballot. This involved examining the union's adherence to the provisions of the Fair Work Act 2009 and other relevant industrial relations laws. The court had to assess the procedural correctness of the union's ballot application and whether the union had appropriately notified the relevant parties, including the employer, about the proposed action.

The court ruled that the union had not complied with the necessary legal requirements to conduct the ballot. It found that the union had failed to adequately notify Barwon Asset Solutions of the ballot's details, which was a critical procedural step. Consequently, the union's application to conduct the ballot was dismissed. The court emphasised the importance of following proper procedures to ensure the legitimacy and fairness of industrial action processes.

The court ordered that the union's application to conduct the protected action ballot be dismissed. It also made an order for the union to pay Barwon Asset Solutions' costs associated with the proceedings, reflecting the court's view that the union's application was without merit.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Barwon Asset Solutions Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established