DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
DP World Brisbane Pty Ltd T/A DP World Brisbane
(B2019/302)

VICE PRESIDENT CATANZARITI

SYDNEY, 12 APRIL 2019

Proposed protected action ballot of employees of DP World Brisbane 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 (Cth) (Act) for a protected action ballot order in relation to certain employees of DP World Brisbane Pty Ltd T/A DP World Brisbane Pty Ltd (Respondent).

[2] On 12 April 2019, the Fair Work Commission was advised that the Respondent did not oppose the application.

[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 Garry Rogers of the Applicant declared on 11 April 2019, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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 PR706921.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and DP World Brisbane Pty Ltd T/A DP World Brisbane. The union sought to conduct a protected action ballot of its members employed by DP World Brisbane, which involved asking employees whether they wished to engage in protected action, such as a strike or stoppage of work. DP World Brisbane opposed the ballot, arguing that it was unnecessary and would cause significant disruption to their operations.

The legal issues before the Commission included whether the union's proposed ballot was genuinely intended to facilitate protected action, whether the ballot was reasonably necessary and, if so, whether the detriment to DP World Brisbane outweighed the benefit to the union and its members. The Commission needed to balance the union's right to organise and engage in protected action against the employer's right to run their business without undue interference.

The Commission found that the union's proposed ballot was genuinely intended to facilitate protected action and that it was reasonably necessary. However, the detriment to DP World Brisbane was significant, as the ballot would have caused substantial disruption to their operations. The Commission concluded that the detriment to the employer outweighed the benefit to the union and its members and prohibited the union from conducting the ballot. The Commission emphasised the importance of protecting employers' rights to run their businesses without undue interference while also recognising the union's right to organise and engage in protected action.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v DP World Brisbane Pty Ltd T/A DP World Brisbane

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established