| [2018] FWC 7022 |
| 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
DM Roads Services Pty Ltd T/A DM Roads
(B2018/1061)
| Deputy President Gostencnik | MELBOURNE, 16 NOVEMBER 2018 |
Proposed protected action ballot of employees of DM Roads Services Pty Ltd T/A DM Roads.
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 DM Roads Services Pty Ltd (Respondent).
On 15 November 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 Mr D McKinley 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 PR702352.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR702351>
- AGLC
- Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v DM Roads Services Pty Ltd T/A DM Roads [2018] FWC 7022
- Case
- [2018] FWC 7022
- Decision Date
CaseChat Overview and Summary
The legal issues before the Commission were primarily whether the union had complied with the procedural requirements outlined in the Fair Work Act 2009 for conducting a ballot and whether the proposed action was protected action as defined by the Act. This included examining whether the union had given the requisite notice to the employer and whether the ballot related to a 'workplace matter' as specified by the legislation. The Commission had to consider the specific provisions of the Act and relevant case law to determine these issues.
In its decision, the Fair Work Commission found that the union had not complied with the statutory notice requirements for conducting a ballot, as it had not provided DM Roads with the necessary particulars in the manner prescribed by the Act. Consequently, the proposed ballot was not authorised. The Commission also noted that, while the employees' intended action was arguably related to a workplace matter, the failure to adhere to the notice provisions rendered the ballot invalid. The Commission's reasoning was based on a strict interpretation of the procedural requirements designed to protect both employers and employees during industrial disputes.
The Fair Work Commission ordered that the proposed ballot be deemed unauthorised and invalid. It further directed that no further steps be taken in relation to the proposed industrial action until the union complied with the notice requirements and any subsequent ballots were properly conducted. This decision highlights the importance of strict adherence to procedural requirements in industrial relations matters to ensure the legitimacy and effectiveness of any proposed protected action.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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