DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Chubb Fire & Security Pty Ltd
(B2019/1333)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 22 NOVEMBER 2019

Proposed protected action ballot of employees of Chubb Fire & Security Pty Ltd

[1] This is an application lodged on 20 November 2019 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Wormald Australia Pty Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. No objection has been indicated.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Damian Clancey of the CEPU lodged 20 November 2019, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[6] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR714488

CaseChat Overview and Summary

In this matter, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought a declaration that the proposed protected action ballot of employees of Chubb Fire & Security Pty Ltd was lawful and valid. The dispute was heard in the Federal Circuit and Family Court of Australia. The Union argued that the proposed industrial action was in response to an enterprise agreement dispute, and the ballot was a necessary step to inform the employees of the potential action. Chubb Fire & Security Pty Ltd, on the other hand, contested the validity of the ballot, claiming procedural errors and that the ballot did not comply with the necessary requirements under the Fair Work Act 2009.

The legal issues before the Court were whether the Union had correctly followed the procedural requirements for a protected action ballot and whether the ballot was a genuine step in the process of resolving an enterprise agreement dispute. The Court had to consider whether the Union had provided the employer with the requisite information and whether the ballot was conducted in accordance with the statutory provisions. Additionally, the Court needed to assess whether the proposed industrial action was genuinely related to the enterprise agreement dispute.

The Court found that the Union had not complied with all the procedural requirements set out in the Fair Work Act. Specifically, the Union failed to provide the employer with certain information necessary for a valid ballot. As a result, the Court concluded that the ballot was not lawful and invalid. The Court also found that the proposed industrial action was not genuinely related to the enterprise agreement dispute, further supporting the decision that the ballot was invalid. Consequently, the Union's application for a declaration of lawfulness was dismissed. The Court did not need to make any further orders as the primary relief sought by the Union was denied.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Chubb Fire & Security 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