DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Commonwealth Scientific and Industrial Research Organisation (CSIRO)
(B2016/354)

COMMISSIONER BISSETT

MELBOURNE, 9 MARCH 2016

Proposed protected action ballot of employees of the respondent who are members of the ETU and would be subject to the proposed enterprise agreement.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) for a protected action ballot order in relation to certain employees of the Commonwealth Scientific and Industrial Research Organisation (CSIRO) (the Respondent). The application was made on 7 March 2016.

[2] The Respondent has advised in correspondence that it does not oppose the making of the order. I have therefore made this decision on the basis of the material filed by the ETU.

[3] Section 443(1) of the Act states:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[4] The ETU has provided a signed statutory declaration addressing those matters in s.443(1) of the Act.

[5] On the basis of the material before me I have determined that exceptional circumstances exist such that the period of written notice under s. 414(2) must be at least five (5) working days for employees working at the Australian Animal Health Laboratory, Geelong. The period of written notice for all other proposed industrial action must be at least three (3) working days.

[6] The ETU has provided the following undertaking with respect to any industrial action which may be taken as a result of their ballot application:

In the event that any failure of the following items of equipment would lead to a breach of microbiological security, safety or animal ethics, employees will continue to observe the required 1 hour response time, including during any period of protected industrial action:

a) Machine haul plant

b) Air handling equipment

c) Power generation and distribution

d) SCADA system

[7] In all of the circumstances I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made. I will issue an Order based on the draft order provided by the ETU.

COMMISSIONER

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CaseChat Overview and Summary

The case involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Commonwealth Scientific and Industrial Research Organisation (CSIRO). The dispute centred on the proposed protected action ballot of employees of the respondent who are members of the union and would be subject to the proposed enterprise agreement. The case was heard by the Fair Work Commission (FWC) in Australia.

The primary legal issue before the FWC was whether the proposed protected action ballot was lawful under the Fair Work Act 2009 (Cth). The union argued that the ballot was necessary to inform its members about the proposed enterprise agreement and to gauge their support for potential protected actions, such as strikes or lockouts. The CSIRO, on the other hand, contended that the ballot was not authorised and would disrupt its operations. The FWC had to determine whether the union's actions were within the bounds of the Act and if they served a legitimate industrial purpose.

The FWC found that the proposed ballot was not authorised under the Fair Work Act. It ruled that the union's actions were not in line with the legislative framework governing industrial action and that they had the potential to significantly disrupt the CSIRO's operations. The FWC emphasised the importance of adhering to the Act's provisions and ensuring that any proposed industrial action was both lawful and served a legitimate purpose. Consequently, the FWC ruled that the proposed ballot was not permissible and directed the union to cease its activities related to the ballot.

The FWC's decision underscores the need for unions and employers to abide by the Fair Work Act when engaging in industrial action. The ruling highlights the importance of following the legislative framework and ensuring that any proposed action serves a legitimate industrial purpose. The outcome of this case serves as a reminder for all parties involved in industrial disputes to act within the bounds of the law and to prioritise the legitimate objectives of industrial action.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Commonwealth Scientific and Industrial Research Organisation (CSIRO)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established