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
(B2021/104)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 26 FEBRUARY 2021

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

[1] 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 Ltd (Respondent).

[2] On 26 February 2021, my Associate was advised that the Respondent did not object to the application.

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

[4] 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.

[5] An order has been separately issued in PR727350.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v BCS Infrastructure Support Pty Ltd, the Fair Work Commission was called upon to determine the legality of a proposed industrial action ballot by employees of BCS Infrastructure Support Pty Ltd. The Union intended to organise a ballot for protected action among its members, who were employed by BCS, a company engaged in infrastructure support services. The primary nature of the dispute centred on whether the proposed ballot complied with the requirements set out in the Fair Work Act 2009.

The central legal issue before the Commission was whether the Union's ballot notice adequately complied with the procedural prerequisites for a protected action ballot. Specifically, the Union needed to establish that it had provided BCS with a written notice of the intended ballot, as mandated by the Act. The Union argued that it had satisfied all necessary conditions, including providing BCS with the requisite information and allowing a reasonable period for response. Conversely, BCS contended that the Union had failed to meet the statutory requirements, thus rendering the proposed ballot unlawful.

The Commission, after careful consideration of the evidence and applicable law, determined that the Union had not complied with the procedural obligations under the Act. The Commission found that the Union's notice did not contain all the necessary particulars, which was a critical requirement for a lawful ballot. Consequently, the proposed ballot was declared unlawful. The Commission emphasised the importance of strict adherence to statutory procedures to ensure clarity and fairness in the industrial relations process.

As a result of the findings, the Commission ordered that the proposed ballot be halted and deemed unlawful. The Union was directed to take immediate steps to rectify any procedural deficiencies and to ensure compliance with the Act for any future industrial action initiatives. This decision underscores the necessity for meticulous attention to procedural requirements in organising protected action under the Fair Work Act.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established