Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Centennial Myuna Pty Ltd

[2022] FWC 1357

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

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

Centennial Myuna Pty Ltd

(B2022/482)

VICE PRESIDENT CATANZARITI

SYDNEY, 30 MAY 2022

Proposed protected action ballot of employees of Centennial Myuna Pty Ltd

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 (Cth) (Act) for a protected action ballot order in relation to certain employees of Centennial Myuna Pty Ltd (Respondent).

On 30 May 2022, the Fair Work Commission was advised that the Respondent neither consented to nor opposed the application

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

On the basis of the material before me, including the statutory declaration of Bradley McDougall of the Applicant declared on 16 May 2022, 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.

An Order has been separately issued in PR742140.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission recently dealt with an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia against Centennial Myuna Pty Ltd. The union sought an order under section 437 of the Fair Work Act 2009 for a protected action ballot in relation to certain employees of the respondent company. The union had informed the Fair Work Commission that the company neither consented to nor opposed the application. Given these circumstances, the Vice President decided to determine the matter based on the submitted papers without the need for a hearing.

The primary legal issue before the Commission was whether the union had met the requirements of section 443(1) of the Fair Work Act 2009, which mandates that the union must have been genuinely attempting to reach an agreement with the employer before seeking a ballot for protected action. The union had to demonstrate through a statutory declaration that it had been genuinely trying to negotiate with the company and that a notification period in relation to the proposed agreement had elapsed. The declaration by Bradley McDougall of the union, dated 16 May 2022, was central to this assessment.

The Commission found that the union had satisfied the requirements of section 443(1) of the Act. Based on the statutory declaration and the steps taken by the union in bargaining with the company, it was determined that the union had indeed been genuinely trying to reach an agreement and that a notification period had passed. Consequently, the Vice President issued an order permitting the union to proceed with the ballot for protected action. A separate order was also issued in PR742140.

This decision underscores the importance of the notification period and the necessity for unions to demonstrate genuine attempts at negotiation before proceeding with a ballot for protected action. The Fair Work Commission's decision to allow the ballot highlights the balance between protecting the rights of employees and ensuring that procedural requirements are met.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established