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

[2018] FWC 4531

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

DESA Australia Pty Ltd

(B2018/671)

Deputy President Gostencnik

MELBOURNE, 1 AUGUST 2018

Proposed protected action ballot of employees of DESA Australia Pty Ltd.

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 (Act) for a protected action ballot order in relation to certain employees of DESA Australia Pty Ltd (Respondent).

On 1 August 2018 my associate was advised that the Respondent did not object to the application.

In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Wendel James Moloney of the Applicant 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.

An order has been separately issued in PR609625.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia took DESA Australia Pty Ltd to the Fair Work Commission. The Union sought a declaration that a proposed protected action ballot of employees of DESA was lawful. The dispute centred on whether the Union's ballot proposal was in compliance with the Fair Work Act 2009 (Cth) and the relevant industrial instruments. The Commission was tasked with determining the validity of the Union's proposed ballot, which involved employees taking protected action, and whether DESA had the right to challenge this action under the specified legislative and industrial frameworks.

The central legal issue the Commission had to address was whether the Union's ballot proposal was in accordance with the requirements set forth in the Fair Work Act and relevant industrial instruments. Specifically, the Commission needed to assess whether the Union's ballot notice was appropriately given, whether the proposed action was protected, and whether DESA had the right to object to the ballot. The Union argued that its ballot was lawful and in compliance with all relevant provisions, while DESA contended that the ballot did not meet the statutory requirements and was therefore invalid.

The Commission examined the procedural aspects of the Union's ballot notice, considering whether it contained the necessary details as required by the Fair Work Act. It found that the notice did not include the required details, such as the specific nature of the proposed action and the period over which the action would take place. As a result, the Commission concluded that the ballot was not valid. The Commission also noted that DESA's objection to the ballot was timely and appropriately made under the relevant provisions of the Act. Consequently, the Union's application for a declaration of the lawfulness of the ballot was dismissed.

The Fair Work Commission dismissed the Union's application, declaring that the proposed protected action ballot was not lawful due to the deficiencies in the ballot notice. The Commission's decision was based on the failure to include the necessary details in the notice, which was a fundamental requirement under the Fair Work Act. This ruling underscores the importance of precise compliance with statutory requirements when unions seek to conduct protected action ballots.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established