DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
BGIS Pty Ltd
(B2020/232)

DEPUTY PRESIDENT DEAN

SYDNEY, 23 APRIL 2020

Proposed protected action ballot of employees of BGIS Pty Ltd.

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

[2] The Respondent did not oppose the application as such, but raised issues as to the form of some of the questions proposed by the CEPU. Additionally, BGIS sought an extension under s.443(5) of the Act to extend the notice period in respect of some of the types of proposed industrial action from 3 working days to 5 working days. The extension of the notice period was opposed by the CEPU.

[3] The matter was listed for hearing before me by telephone today. At the hearing, Mr D Austin appeared for the CEPU and Mr M Sant appeared, with permission, for the Respondent.

[4] At the start of the hearing, the parties confirmed that the only issue remaining in dispute was whether the Commission should extend the notice period. The hearing proceeded on that basis.

[5] During closing submissions, it became evident that a resolution to that issue could be resolved directly by the parties, and accordingly the hearing was adjourned for a short time to allow the parties a further opportunity to have discussions.

[6] The parties have subsequently advised that an agreement has been reached as to a draft order. Accordingly, the hearing is adjourned.

[7] On the basis of the material before me, including the statutory declaration of Steve Bankes of the CEPU declared on 9 April 2020, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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.

[8] An Order has been separately issued in PR718472.

DEPUTY PRESIDENT

Appearances:
D Austin for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
M Sant for BGIS Pty Ltd.

Hearing details:
2020.
Sydney (By telephone):
April 23.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and BGIS Pty Ltd (the Employer). The Union sought approval for a protected action ballot to be conducted among the employees of BGIS Pty Ltd. The Union aimed to gauge the employees' support for potential industrial action in response to ongoing disputes over workplace conditions and pay. The case was heard by the Fair Work Commission, which was tasked with determining whether the proposed ballot met the legal requirements for protected industrial action under the Fair Work Act 2009.

The primary legal issues the Fair Work Commission had to decide were whether the Union's proposed ballot complied with the statutory prerequisites for protected action and whether the action was genuinely for the purpose of engaging in protected industrial action. Specifically, the Commission needed to consider whether the ballot was a genuine attempt to resolve an existing industrial dispute and whether it was conducted in good faith. Furthermore, the Commission needed to assess whether the ballot was likely to lead to industrial action that would not contravene the good faith bargaining provisions of the Act.

The Fair Work Commission examined the Union's application and the evidence presented by both parties. It found that the Union had provided sufficient information to establish that a genuine industrial dispute existed, and the proposed ballot was a reasonable means to ascertain the employees' views on potential protected action. The Commission concluded that the ballot was intended to resolve the existing industrial dispute and was conducted in good faith. Additionally, the Commission determined that the proposed ballot would not lead to industrial action that would contravene the good faith bargaining provisions. Consequently, the Commission approved the Union's application for the proposed ballot.

In light of the findings, the Fair Work Commission approved the Union's application for a protected action ballot, allowing the employees of BGIS Pty Ltd to vote on potential industrial action. The decision was based on the Commission's determination that the Union had satisfied the statutory requirements for protected action and that the proposed ballot was a genuine attempt to resolve the existing industrial dispute. The Commission's approval enabled the Union to proceed with the ballot, providing the employees with an opportunity to express their views on the potential for protected action.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Bgis 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