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

[2022] FWC 2714

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

Dormakaba Australia Pty Ltd

(B2022/1531)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 12 OCTOBER 2022

Proposed protected action ballot of employees of Dormakaba 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 Dormakaba Australia Pty Ltd (the Respondent).

The Respondent submitted the proposed protected action ballot order was premature in the bargaining process and there were multiple factual inaccuracies in the materials filed by the Applicant. However, it indicated that it did not intend to file any further materials in support of its objection. I offered the Respondent a further opportunity to outline a statutory basis that would support the rejection of the application but no further material was provided and nor did it request to be heard in addition to the correspondence it had sent to my Chambers outlining its position.

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 declaration of Mr Stewart Edward of the Applicant, setting out the steps taken by the Applicant in bargaining and the assertion 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 PR746669.

DEPUTY 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) for a protected action ballot order regarding certain employees of Dormakaba Australia Pty Ltd (Respondent). The application was made under section 437 of the Fair Work Act 2009, seeking authorisation for the proposed ballot. The Respondent argued that the ballot was premature in the bargaining process and that there were inaccuracies in the Applicant's materials. The Respondent did not file further materials or request a hearing, leading the Deputy President to determine the matter based on the existing papers.

The legal issues before the court involved whether the notification time for the proposed agreement had been met and whether the requirements of section 443(1) of the Act had been satisfied. The Applicant claimed that it had been genuinely trying to reach an agreement with the Respondent and had followed proper bargaining procedures. The Respondent's primary contention was that the ballot was premature, but it did not provide additional evidence or arguments to support this position.

The Deputy President found that the Applicant had adequately demonstrated the steps taken in bargaining and had met the notification time for the proposed agreement. Given the Applicant's declaration and the absence of further opposition from the Respondent, the court was satisfied that the requirements of the Act were met. Consequently, the application for a protected action ballot order was approved.

An order was issued in PR746669, permitting the protected action ballot to proceed as requested by the Applicant. The court's decision was based on the evidence presented and the lack of additional arguments or materials from the Respondent.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established