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

[2013] FWC 9428

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
BCS Infrastructure Support Pty Limited
(B2013/1532)

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 2 DECEMBER 2013

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

[1] This is an application for a protected action ballot of members of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) employed by BCS Infrastructure Support Pty Limited.

[2] This application was filed by the CEPU on 28 November 2013. The CEPU has filed a statutory declaration of Ms C. Larkins in support of this application. I am satisfied that the CEPU has demonstrated that it has been and is genuinely trying to reach an agreement with the employer.

[3] Mr Andrew Mauger, General Manager, of the employer advised my chambers by email that the company does not oppose the order.

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

[5] I am satisfied that the requirements in s.443(1) of the Act have been met and that, accordingly, an order must be made. An order based on the draft order provided by the CEPU has issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and BCS Infrastructure Support Pty Limited. The union sought to conduct a protected action ballot among its members, who were employees of BCS Infrastructure Support Pty Limited, to explore the possibility of taking industrial action. BCS Infrastructure Support Pty Limited opposed the ballot on the grounds that it was not necessary or appropriate, given the ongoing negotiations and the lack of a substantive dispute that warranted such action. The legal issues before the Commission involved the requirements for conducting a protected action ballot under the Fair Work Act 2009, including whether there existed a genuine dispute justifying the proposed industrial action.

The Fair Work Commission assessed the evidence and arguments presented by both parties. It examined whether a genuine dispute existed that warranted a ballot for protected action. The Commission noted the union's contention that unresolved issues remained in the negotiations, while BCS Infrastructure Support Pty Limited argued that the discussions were progressing and that the proposed action was premature. The Commission also considered the implications of any industrial action on the broader workforce and the need to balance the rights of employees to take protected action with the potential impact on the employer's operations and the public interest. Ultimately, the Commission determined that the union had not demonstrated a genuine dispute that warranted a protected action ballot at that time.

Consequently, the Fair Work Commission dismissed the union's application to conduct the proposed ballot. The decision was grounded in the absence of a clear and substantive dispute that necessitated industrial action and the ongoing nature of the negotiations between the union and the employer. The Commission emphasised the importance of continuing dialogue and the resolution of disputes through negotiation rather than resorting to industrial action prematurely. This decision underscores the necessity for unions to demonstrate a genuine and substantive dispute before seeking to conduct a protected action ballot, ensuring that such actions are justified and proportionate to the circumstances.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established