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

[2022] FWC 1401

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
v

Barwon Asset Solutions Pty Ltd

(B2022/522)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 3 JUNE 2022

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 (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 (the Respondent).

On 3 June 2022, my Associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the declaration of Ms Chelsea Hill 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 PR742297.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission received an application from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Barwon Asset Solutions Pty Ltd (the Employer). The Union sought the order to enable its members to vote on taking protected action in response to ongoing negotiations with the Employer. The matter was determined by Deputy President Clancy on 3 June 2022, following the Employer's lack of objection to the application. Consequently, the Deputy President proceeded to decide the case based on the submitted documentation without the necessity for a hearing.

The primary legal issue before the Deputy President was whether the Union had fulfilled the prerequisites for a protected action ballot order under section 437 of the Fair Work Act 2009. Specifically, the Deputy President had to determine if the Union had genuinely endeavoured to reach an agreement with the Employer and if the notification period for the proposed agreement had been met, as per section 443(1) of the Act. These conditions were critical to granting the Union's application for a ballot.

In assessing the application, Deputy President Clancy reviewed the declaration of Ms Chelsea Hill of the Union, which outlined the Union's efforts in bargaining with the Employer. The Union's declaration indicated that it had been genuinely attempting to reach an agreement with the Employer, fulfilling one of the requirements for the protected action ballot order. Additionally, the Deputy President was satisfied that the notification period for the proposed agreement had been appropriately observed. Consequently, the Deputy President found that the Union had met the necessary criteria under the Act for the application to be granted.

As a result of the Deputy President's findings, the application for a protected action ballot order was approved. This decision allowed the Union's members to vote on whether to proceed with protected action. An order was subsequently issued in PR742297, formalising the decision.

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