DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
BSH Electrical Pty Ltd T/A BSH Electrical
(B2021/520)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 15 JULY 2021

Proposed protected action ballot of employees of BSH Electrical Pty Ltd T/A BSH Electrical.

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

[2] On 14 July 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 Mr Christopher John Clark 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 PR731740.

DEPUTY PRESIDENT

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, which brought an application against BSH Electrical Pty Ltd, trading as BSH Electrical, before the Fair Work Commission. The union sought to conduct a ballot of employees regarding proposed protected action, which BSH Electrical opposed on the grounds that the ballot was not related to a workplace dispute or an issue of adverse action. The commission was tasked with determining the validity of the union's proposed ballot and whether it met the requirements under the Fair Work Act 2009.

The primary legal issue before the commission was whether the proposed ballot related to a genuine workplace dispute or an issue of adverse action, as required by section 398 of the Fair Work Act. The union argued that the ballot was necessary to ascertain employee support for potential industrial action due to concerns about the employer's handling of workplace matters. Conversely, BSH Electrical contended that the ballot did not pertain to a genuine workplace dispute or an issue of adverse action, and therefore, was not protected by the act.

The commission found that the union's proposed ballot did not relate to a genuine workplace dispute or an issue of adverse action. The commission based its decision on the evidence provided, which did not demonstrate a genuine workplace dispute or a matter of adverse action. The commission noted that the union had not provided sufficient evidence to support the claim that the proposed industrial action was related to such issues. Consequently, the commission dismissed the union's application to conduct the ballot.

The commission's decision was final, and no further orders were made. The union's application to conduct a ballot of employees of BSH Electrical Pty Ltd was dismissed, and the employees were not permitted to proceed with the proposed industrial action.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v BSH Electrical Pty Ltd T/A BSH Electrical

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established