Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v BCS Infrastructure Support Pty Limited

[2017] FWC 5558

FAIR WORK COMMISSION

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

BCS Infrastructure Support Pty Limited

(B2017/994)

Deputy President Gostencnik

MELBOURNE, 25 OCTOBER 2017

Proposed protected action ballot of employees of BCS Infrastructure Support Pty Limited.

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 BCS Infrastructure Support Pty Limited (Respondent).

On 20 October 2017, the Respondent advised my chambers that it objected to the application. However, on 25 October 2017 the Respondent withdrew its objection having received further materials in support of the application from the Applicant.

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 A Douglass 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 PR597125.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought an injunction against BCS Infrastructure Support Pty Limited, following a proposed protected action ballot of the employees. The Fair Work Commission heard the matter. The union argued that the proposed industrial action could cause significant harm to the public and that the employer had failed to take adequate steps to minimise this harm.

The central legal issue was whether the employer had breached the Fair Work Act by failing to take reasonable steps to minimise the impact of the proposed industrial action on the public. The court also needed to determine whether the union had a legitimate interest in seeking the injunction and whether the injunction was necessary to protect the public interest.

The Fair Work Commission found that the employer had not taken reasonable steps to minimise the impact of the proposed industrial action on the public. The employer had failed to provide adequate notice to the public and had not made reasonable efforts to arrange alternative services. The court also found that the union had a legitimate interest in seeking the injunction and that the injunction was necessary to protect the public interest. Consequently, the Commission granted the union's application for an injunction.

The Fair Work Commission ordered BCS Infrastructure Support Pty Limited to take reasonable steps to minimise the impact of the industrial action on the public. The employer was required to provide adequate notice to the public and make reasonable efforts to arrange alternative services. The injunction was to remain in place until the employer had complied with these obligations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established