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

[2022] FWC 3282

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

Devro Pty Limited

(B2022/1826)

VICE PRESIDENT CATANZARITI

SYDNEY, 13 DECEMBER 2022

Proposed protected action ballot of employees of Devro Pty Limited

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 Devro Pty Limited (Respondent).

On 13 December 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

On the basis of the material before me, including the statutory declaration of Nicholas Bligh of the Applicant declared on 12 December 2022, 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 PR748878.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) seeking a protected action ballot order in relation to certain employees of Devro Pty Limited (Respondent). The application was made under section 437 of the Fair Work Act 2009. The Applicant claimed that it had been genuinely trying to reach an agreement with the Respondent and had followed the necessary steps in bargaining. The Respondent did not oppose the application, and thus, the Vice President decided to determine the matter on the papers without a hearing.

The legal issues before the Commission were whether the notification time for the proposed agreement was met and if the requirements of section 443(1) of the Act were satisfied. The Commission had to consider the statutory declaration of Nicholas Bligh of the Applicant, which outlined the bargaining process and the Applicant's efforts to reach an agreement with the Respondent. The Commission also needed to ensure that the application met the criteria for a protected action ballot order under the Act.

The Vice President found that the notification time for the proposed agreement was met and that the requirements of section 443(1) of the Act were satisfied based on the material before the Commission. The statutory declaration of Nicholas Bligh, along with the Applicant's efforts in bargaining, demonstrated that the Applicant had genuinely tried to reach an agreement with the Respondent. The Commission was satisfied that the application met the criteria for a protected action ballot order under the Fair Work Act.

As a result, the Commission issued an Order in PR748878, granting the Applicant's application for a protected action ballot order in relation to the employees of Devro Pty Limited. The Commission found that the notification time for the proposed agreement was met and that the requirements of section 443(1) of the Act were satisfied, allowing the Applicant to proceed with the ballot for protected action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established