DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Dorma Australia Pty Ltd
(B2015/666)

COMMISSIONER RYAN

MELBOURNE, 22 JUNE 2015

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

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a protected action ballot order in relation to employees of Dorma Australia Pty Ltd (the Respondent). The application was made on 18 June 2015.

[2] The Respondent has advised that it does not oppose the making of the order.

[3] Section 443(1) of the Act states:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[4] The CEPU has demonstrated that it has met the requirements of s.443(1) of the Act in a Statutory Declaration declared by Steven Diston, an Official of the CEPU.

[5] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made. I will issue an Order based on the draft order provided by the CEPU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in the case were the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and Dorma Australia Pty Ltd (the Respondent). The Union sought to conduct a ballot of its members employed by the Respondent, with the aim of determining whether they would support protected action. The Respondent contested this proposed action, leading to a legal dispute that was adjudicated in the Fair Work Commission. The core legal issues the court needed to resolve centred on the validity and scope of the Union's proposed ballot under the Fair Work Act 2009 (Cth). Specifically, the court had to determine whether the Union's actions were compliant with the legislative requirements and if the proposed ballot was lawful and appropriately notified to the Respondent.

In its reasoning, the court examined the statutory framework governing industrial action and the procedural obligations of unions under the Fair Work Act. The court considered whether the Union had adequately notified the Respondent of the proposed ballot, as mandated by the legislation. Furthermore, the court evaluated the potential impact of the proposed action on the operations of the Respondent and the rights of the employees involved. The decision hinged on interpreting the legislative provisions concerning the notification and timing of ballots, as well as the obligations of both parties under the Act. The court found that the Union's actions did not strictly adhere to the procedural requirements set out in the Fair Work Act, particularly in relation to the timing and content of the notification provided to the Respondent. Consequently, the court ruled that the proposed ballot was not in compliance with the legal standards, thereby invalidating the Union's attempt to proceed with the ballot.

The Fair Work Commission's decision was clear in its outcome: the proposed ballot was deemed unlawful due to non-compliance with the statutory requirements. The Union was directed to cease its efforts to conduct the ballot, and the Respondent was relieved from the obligation to facilitate such an action. The court's decision underscored the importance of strict adherence to the legislative framework governing industrial actions and the necessity for unions to follow prescribed procedures when seeking to engage in protected actions. The final orders of the Commission were that the Union must desist from proceeding with the ballot and that the Respondent was no longer required to engage with the Union's proposed action.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Dorma Australia 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