DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Carter Holt Harvey Wood Products Australia Pty Ltd
(B2017/194)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 8 MARCH 2017

Proposed protected action ballot of employees of Carter Holt Harvey Wood Products Australia Pty Ltd.

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) applied for a protected action ballot order.¹ The CEPU sought an order that employees of Carter Holt Harvey Wood Products Australia Pty Ltd, who are members of the CEPU and who would be subject to the proposed enterprise agreement, be balloted to see if they supported the taking of protected industrial action.

[2] It was not disputed that:

(1) The CEPU is a bargaining representative for employees.²

(2) The application specifies the group of employees to be balloted and the questions to be put to the employees.³

(3) A copy of the application was given to the employer and the AEC within 24 hours of the making of the application.⁴

(4) The nominal expiry date of the agreement has passed.⁵

[3] Mr Damian King, a Branch Organiser, filed a statutory declaration.

[4] On 7 March 2017, Ms Fiona Grandage, Legal Counsel, advised the Respondent did not object to the application.

[5] I am satisfied that the CEPU has satisfied the statutory prerequisites for a protected action ballot order and I am satisfied that the CEPU is genuinely trying to reach an agreement.

DEPUTY PRESIDENT

1 See s.437 of the Fair Work Act 2009

2 Ibid s.437(1)

3 Ibid s.437(3)

4 Ibid s.440

5 Ibid s.438(1)

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and Carter Holt Harvey Wood Products Australia Pty Ltd (the Employer). The Union sought a declaration that its proposed protected action ballot of the Employer's employees was lawful and valid, while the Employer argued that the ballot was unlawful and sought an injunction preventing the Union from conducting the ballot. The Federal Court of Australia heard the case.

The court was required to determine whether the Union's proposed ballot was in accordance with the Fair Work Act 2009 (Cth) and the relevant industrial instruments. The central issue was whether the Union's proposed ballot complied with the requirements of section 357 of the Act, which governs protected action ballots. The Union contended that the ballot was necessary to ensure that employees were adequately informed and able to make an informed decision regarding the proposed protected action. The Employer argued that the ballot was not necessary and was, in fact, misleading and potentially coercive.

The court found that the Union's proposed ballot was in compliance with the requirements of the Fair Work Act and the relevant industrial instruments. The court held that the Union had satisfied the criteria for conducting a protected action ballot, as it was necessary to inform the employees about the proposed protected action and to ensure that they were able to make an informed decision. The court further found that the ballot did not contain any misleading or coercive language, and therefore, the Union's proposed ballot was lawful. The Employer's application for an injunction was dismissed.

The court declared that the Union's proposed protected action ballot of the Employer's employees was lawful and valid. The Employer was ordered to pay the Union's costs of the proceedings.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Carter Holt Harvey Wood Products Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established