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

[2022] FWC 2395

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 Ltd

(B2022/1344)

VICE PRESIDENT CATANZARITI

SYDNEY, 8 SEPTEMBER 2022

Proposed protected action ballot of employees of BCS Infrastructure Support Pty Ltd

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of BCS Infrastructure Support Pty Ltd (Respondent).

On 8 September 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Scott Reichman of the Applicant declared on 6 September 2022, 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 PR745635.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) sought a protected action ballot order from the Fair Work Commission against BCS Infrastructure Support Pty Ltd. The ETU argued that it had been genuinely attempting to reach an agreement with the employer for a new enterprise agreement, and that it was appropriate to hold a ballot to determine whether the employees would support protected industrial action. The employer did not oppose the application, and the matter was determined on the papers without a hearing.

The central legal issue was whether the ETU had satisfied the requirements of the Fair Work Act 2009 to hold a ballot for protected action. This involved determining whether the union had genuinely attempted to reach an agreement with the employer, and whether the notification time for the proposed agreement had been met.

The Vice President found that the ETU had satisfied these requirements, based on the material before the Commission. The Vice President was satisfied that the ETU had been genuinely attempting to reach an agreement with the employer, and that the notification time for the proposed agreement had been met. The Vice President noted that the employer did not oppose the application, and that the ETU had provided a statutory declaration setting out the steps it had taken in bargaining with the employer. The Vice President was satisfied that the requirements of the Act had been met, and made the order sought by the ETU.

The Fair Work Commission ordered that a ballot for protected action be held among the employees of BCS Infrastructure Support Pty Ltd. The Commission found that the ETU had satisfied the requirements of the Fair Work Act 2009 to hold such a ballot, and that it was appropriate to allow the ballot to proceed. The order was made in separate proceedings, PR745635.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established