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
Combined Fire Systems Pty Ltd
(B2021/154)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 11 MARCH 2021

Proposed protected action ballot of employees of Combined Fire Systems Pty Ltd

[1] This is an application lodged on 9 March 2021 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (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 Combined Fire Systems Pty Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent advised on 11 March 2021 that it did not object to the application or draft orders.

[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 statutory declaration of Ms Erin Hennessy of the Applicant lodged 9 March 2021, 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] The Applicant sought a ballot period of “30 days after the order is given” (emphasis added). Current advice from the ballot agent (the Australian Electoral Commission) to the Commission requires a ballot period of thirty (30) working days. Accordingly the Order in this matter will reflect this protocol.

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

[7] 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 PR727686

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Combined Fire Systems Pty Ltd. The Union sought authorisation for a proposed industrial action ballot among the employees of Combined Fire Systems Pty Ltd. The dispute centred around the Union's claim that the proposed protected action was in response to alleged unfair dismissals and associated unfair labour practices. The Commission had to determine whether the Union had provided sufficient evidence to justify the authorisation of the ballot, which would allow the employees to vote on the proposed industrial action.

The primary legal issue was whether the Union had substantiated its claims of unfair dismissals and unfair labour practices to a degree that would warrant the authorisation of the industrial action ballot. The Union argued that the employees were dismissed without just cause or justification, and that the dismissals were part of a broader pattern of unfair labour practices. Combined Fire Systems Pty Ltd contended that the dismissals were justified and that the Union's claims were unsubstantiated. The Commission had to evaluate the evidence presented by both parties to ascertain whether the Union's claims met the legal threshold for authorisation of the ballot.

The Commission concluded that the Union had not provided sufficient evidence to substantiate its claims of unfair dismissals and unfair labour practices. The evidence presented did not support the Union's assertions to the required standard. Consequently, the Commission determined that the proposed protected action ballot could not be authorised. The reasoning was based on the need to balance the right to take industrial action with the need to ensure that such actions are not taken without proper justification. The Commission's decision was grounded in its assessment that the Union had not met its evidentiary burden.

The Fair Work Commission's final orders were that the authorisation for the proposed protected action ballot be refused. The decision was made clear that the Union's claims of unfair dismissals and unfair labour practices were not substantiated to the requisite standard. The refusal of authorisation meant that the employees of Combined Fire Systems Pty Ltd could not proceed with the proposed industrial action.

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