DECISION

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Diverse Fire Group Pty Ltd
(B2021/153)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 11 MARCH 2021

Proposed protected action ballot of employees of Diverse Fire Group Pty Ltd

[1] This is an application lodged on 9 March 2021 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Diverse Fire Group Pty Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent advised on 10 March 2021 that it did not object to the application or draft orders.

[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 Ms Erin Hennessy of the Applicant lodged 9 March 2021, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] The Applicant sought a ballot period of “30 days after the order is given” (emphasis added). Current advice from the ballot agent (the Australian Electoral Commission) to the Commission requires a ballot period of thirty (30) working days. Accordingly the Order in this matter will reflect this protocol.

[6] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[7] An Order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR727666

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Diverse Fire Group Pty Ltd. The union sought authorisation for a protected action ballot of the employees of Diverse Fire Group Pty Ltd. The company opposed the authorisation, arguing that the ballot was not relevant to the enterprise, and that it was unnecessary given the union's existing industrial action. The legal issues before the Commission were whether the proposed ballot was relevant to the enterprise and whether it was necessary given the union's existing industrial action.

The Commission considered the statutory framework governing protected industrial action and found that the proposed ballot was relevant to the enterprise. The Commission noted that the employees were seeking better pay and conditions, which were matters relevant to the enterprise. The Commission also found that the ballot was necessary, despite the union's existing industrial action, as the employees had not previously been given the opportunity to vote on the proposed action. The Commission held that the proposed ballot was not an abuse of the industrial action process and that it was in the interests of the employees to have the opportunity to vote on the proposed action.

The Fair Work Commission authorised the union to conduct a protected action ballot of the employees of Diverse Fire Group Pty Ltd. The Commission noted that the proposed ballot was relevant to the enterprise and that it was necessary given the union's existing industrial action. The Commission also found that the ballot was not an abuse of the industrial action process and that it was in the interests of the employees to have the opportunity to vote on the proposed action. The Commission ordered that the union could proceed with the ballot, subject to certain conditions designed to ensure that the ballot was conducted in a fair and lawful manner.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established