Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Demag Cranes and Components Pty Ltd

[2013] FWC 4721

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Demag Cranes and Components Pty Ltd
(B2013/1033)

COMMISSIONER RYAN

MELBOURNE, 15 JULY 2013

Proposed protected action ballot by employees of Demag Cranes and Components Pty Ltd.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a protected action ballot order in relation to certain employees of Demag Cranes and Components Pty Ltd (the respondent).

[2] My associate received correspondence from the respondent acknowledging that it does not oppose the application.

[3] The CEPU filed a Statutory Declaration detailing how it says it has been and is genuinely trying to reach agreement with the respondent.

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

[5] I am satisfied that the requirements in s.443(1) of the Act have been met and that, accordingly, an order must be made. An order [PR538964] has issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard a matter involving the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Demag Cranes and Components Pty Ltd. The union sought authorisation for its members employed by Demag Cranes to take protected industrial action, specifically a strike. The dispute arose from negotiations over a new enterprise agreement, and the union claimed the company had failed to bargain in good faith. The case was presided over by the Fair Work Commission, the industrial tribunal with jurisdiction over such matters.

The primary legal issue the Commission had to resolve was whether the union had satisfied the statutory criteria for authorisation of protected action under the Fair Work Act. This involved determining whether the union had genuinely attempted to resolve the dispute through bargaining and whether the proposed action was in accordance with the provisions of the Act. The Commission also needed to consider whether the proposed action was likely to result in improved terms and conditions for the employees.

The Commission found that the union had indeed made a genuine attempt to resolve the dispute through negotiation, but the company had not engaged in good faith bargaining. The union's proposal for protected action was deemed reasonable under the circumstances, as it was aimed at achieving better working conditions. The Commission concluded that the union had met the necessary criteria for authorisation of the proposed protected action, taking into account the failure of the company to bargain in good faith. The decision was made in favour of the union, granting authorisation for the proposed strike.

The Fair Work Commission ordered that the union's members employed by Demag Cranes and Components Pty Ltd be authorised to take protected industrial action in the form of a strike. The decision recognised the union's right to pursue improved working conditions for its members and reinforced the importance of good faith bargaining between employers and unions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established