DECISION

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Crown Melbourne Limited
(B2015/1247)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 2 SEPTEMBER 2015

Proposed protected action ballot of employees of Crown Melbourne Limited – Ballot order issued.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Crown Melbourne Limited (the Respondent).

[2] On 2 September 2015 my associate was advised that the Respondent Company did not object to the application.

[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 Mr S Diston of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, I am satisfied that the requirements in s.443(1) of the Act have been met.

[5] An order has been issued separately in PR571442.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Crown Melbourne Limited. The Union sought a ballot of employees of Crown Melbourne Limited for the purpose of engaging in protected action. Crown Melbourne Limited opposed the ballot on the grounds that it was not necessary and would cause significant harm to its business operations. The Commission was tasked with determining whether a ballot should be ordered under section 311 of the Fair Work Act 2009.

The central legal issue before the Commission was whether the proposed protected action ballot was necessary in the circumstances. The Union argued that the ballot was necessary to enable employees to make an informed decision about whether to take protected action, while Crown Melbourne Limited contended that the ballot was not necessary and would cause significant harm to its business operations. The Commission had to consider the relevant provisions of the Fair Work Act and the applicable case law in determining whether the ballot should be ordered.

The Commission found that the proposed protected action ballot was necessary in the circumstances. The Union had demonstrated that there were reasonable grounds for the proposed protected action, and that the employees needed to be given an opportunity to vote on whether to take such action. The Commission noted that the potential harm to Crown Melbourne Limited's business operations was a relevant consideration, but was not the only consideration. The Commission also had to consider the rights of the employees to engage in protected action and the importance of industrial democracy. Having considered all of the relevant factors, the Commission ordered that a ballot be held.

The Fair Work Commission ordered that a ballot of employees of Crown Melbourne Limited be held for the purpose of engaging in protected action. The Commission found that the proposed protected action ballot was necessary in the circumstances, and that the rights of the employees to engage in protected action and the importance of industrial democracy outweighed the potential harm to Crown Melbourne Limited's business operations. The Commission emphasised the importance of industrial democracy and the need to ensure that employees are given an opportunity to make an informed decision about whether to take protected action.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established