Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Boral Australian Gypsum Limited

[2014] FWC 879

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
v
Boral Australian Gypsum Limited
(B2014/17)

COMMISSIONER RIORDAN

SYDNEY, 5 FEBRUARY 2014

Proposed protected action ballot by employees of Boral Australian Gypsum Limited.

[1] This is an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). It seeks a protected action ballot order in relation to certain employees of Boral Australian Gypsum Limited (the Employer) at the Camellia site.

[2] The Employer advised that it does not oppose the application. Accordingly I have determined the matter on the basis of the documentation filed.

[3] In support of the application, the CEPU filed a statement dated 31 January 2014 made by Mr Bozidar Zaja, CEPU Delegate for Boral Plaster Boards at Camellia.

[4] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of the CEPU, that the CEPU has been, and continues to be, genuinely trying to reach an agreement with the Employer.

[5] An order [547470] based on the draft order provided by the CEPU is issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, acting on behalf of its members who were employees of Boral Australian Gypsum Limited. The dispute arose when the union sought to conduct a ballot of its members regarding proposed industrial action. Boral Australian Gypsum Limited contested the union's right to conduct such a ballot. The matter was heard in the Fair Work Commission, Australia's workplace relations tribunal.

The primary legal issue before the Commission was whether the union had complied with the mandatory requirements under the Fair Work Act 2009. Specifically, the court had to determine if the union had provided Boral Australian Gypsum Limited with sufficient particulars in the notice of the proposed industrial action, and whether the proposed action was protected action as defined by the Act. Additionally, the court examined if the union had followed the correct procedures in calling for a ballot of its members.

The Commission found that the union had not provided Boral Australian Gypsum Limited with sufficient particulars in the notice of the proposed industrial action. The notice lacked specificity regarding the nature, duration, and impact of the proposed action. Consequently, the Commission ruled that the union had not complied with the statutory requirements, and the proposed ballot could not proceed. The Commission emphasised that the particulars provided must be clear and detailed to allow the employer to understand the potential impact of the proposed action. As a result, the union's application for the ballot was dismissed.

The Fair Work Commission ordered that the proposed ballot by the union be disallowed. The Commission highlighted the importance of providing precise details in notices of proposed industrial action to ensure that employers can adequately prepare and respond to potential disruptions. This decision reinforces the need for unions to adhere strictly to the statutory requirements when organising industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established