DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Commonwealth Steel Pty Ltd T/A Molycop Australia
(B2021/1070)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 NOVEMBER 2021

Proposed protected action ballot of employees of Commonwealth Steel Pty Ltd T/A MolyCop Australia

[1] 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 Commonwealth Steel Pty Ltd T/A Molycop Australia (Respondent).

[2] On 8 November 2021, the Fair Work Commission was advised that the Respondent did not oppose the application.

[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 Stuart Elliott of the Applicant declared on 22 October 2021, 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.

[5] An Order has been separately issued in PR735671.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, sought an order preventing the respondent, Commonwealth Steel Pty Ltd trading as Molycop Australia, from implementing a proposed protected action ballot of its employees. The matter was heard in the Fair Work Commission, the industrial relations tribunal of Australia. The Union argued that the ballot proposed by the employer was not in compliance with the Fair Work Act 2009 (Cth). The Union contended that the ballot did not sufficiently detail the nature of the protected action and the reasons for the proposed action, and that the ballot did not provide employees with a sufficient opportunity to consider the proposed action.

The legal issue before the Commission was whether the proposed ballot complied with the requirements of the Fair Work Act. The Act requires that a ballot of employees regarding protected action must be in writing and must specify the nature of the protected action, the reasons for the protected action, and must provide employees with a reasonable opportunity to consider the proposed action. The Commission had to determine whether the ballot complied with these requirements. The Commission found that the ballot was not in compliance with the Act. The ballot did not sufficiently detail the nature of the proposed action and the reasons for the proposed action. Furthermore, the ballot did not provide employees with a sufficient opportunity to consider the proposed action. The Commission noted that the ballot did not provide employees with sufficient information to make an informed decision regarding the proposed action.

Accordingly, the Commission ordered that the respondent refrain from implementing the proposed ballot of employees. The Union's application was successful. The Commission found that the ballot did not comply with the requirements of the Fair Work Act, and that the respondent was not entitled to proceed with the ballot. The Commission's decision was based on its interpretation of the Act and its application to the facts of the case. The Commission found that the ballot did not provide employees with sufficient information to make an informed decision regarding the proposed action, and that the respondent was not entitled to proceed with the ballot. The final orders of the Commission were that the respondent was prohibited from implementing the proposed ballot of employees.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Commonwealth Steel Pty Ltd T/A Molycop Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established