DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Dormakaba Australia Pty Ltd
(B2019/112)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 13 FEBRUARY 2019

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

[1] 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 (Respondent).

[2] On 13 February 2019, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr S Diston 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.

[5] An order has been separately issued in PR704908.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard a case between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Dormakaba Australia Pty Ltd. The dispute centred around the union's proposed ballot of employees for protected industrial action. The union sought to conduct a ballot of its members, who were employees of Dormakaba, to gauge support for potential protected action. Dormakaba contested the ballot, asserting that it did not meet the procedural requirements set out in the Fair Work Act 2009.

The primary legal issue for the Commission was whether the union's proposed ballot complied with the procedural prerequisites stipulated in the Fair Work Act. Specifically, the Commission needed to determine if the union had correctly identified the industrial issue, given 21 days' written notice to the employer, and included the necessary details in the ballot paper. The Commission also needed to consider if the union had reasonably believed that the members were likely to be directly affected by the issue. The central question was whether these procedural requirements were satisfied to a sufficient standard, enabling the ballot to proceed.

The Commission found that the union's ballot did not meet the procedural requirements as outlined in the Act. The union had failed to adequately specify the industrial issue in the ballot paper, which was a fundamental procedural requirement. Additionally, the Commission noted that the union did not provide Dormakaba with the requisite 21 days' written notice. The Commission concluded that these procedural deficiencies were significant and could not be overlooked. Consequently, the union's proposed ballot did not comply with the Act's requirements, and the Commission did not grant authorisation for the ballot to proceed.

The Fair Work Commission ruled against the union, stating that the proposed ballot did not comply with the statutory requirements. The Commission did not grant authorisation for the ballot to proceed, effectively preventing the union from conducting the proposed industrial action vote. The Commission's decision highlighted the importance of adhering to procedural requirements when organising a ballot for protected industrial action under the Fair Work Act.

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