Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Dynamic Electrical Constructions Pty Limited T/A Dynelec (Australia)

[2022] FWC 3001

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

Dynamic Electrical Constructions Pty Limited T/A Dynelec (Australia)

(B2022/1696)

VICE PRESIDENT CATANZARITI

SYDNEY, 11 NOVEMBER 2022

Proposed protected action ballot of employees of Dynamic Electrical Constructions Pty Limited Trading As Dynelec (Australia)

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 Dynamic Electrical Constructions Pty Limited T/A Dynelec (Australia) (Respondent).

On 11 November 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

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 statutory declaration of Stewart Edward of the Applicant declared on 10 November 2022, 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 PR747856.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission received an application from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) for a protected action ballot order in relation to employees of Dynamic Electrical Constructions Pty Limited T/A Dynelec (Australia) (the Respondent). The application was made under section 437 of the Fair Work Act 2009 (Cth). The Respondent did not oppose the application, and the matter was determined by the Commission without a hearing. The Commission was satisfied that the Applicant had been genuinely trying to reach an agreement with the Respondent and that the requirements of section 443(1) of the Act had been met.

The legal issues in this case centred on whether the Applicant had met the requirements of section 437 of the Fair Work Act 2009 (Cth) to hold a protected action ballot. This included whether there was a notification time in relation to the proposed agreement and whether the Applicant had been genuinely trying to reach an agreement with the Respondent. The Commission considered the statutory declaration of Stewart Edward of the Applicant, which set out the steps taken by the Applicant in bargaining with the Respondent. The Commission was satisfied that the Applicant had met the requirements of section 437 of the Act.

The Fair Work Commission found that the Applicant had met the requirements of section 437 of the Fair Work Act 2009 (Cth) to hold a protected action ballot. The Commission was satisfied that there was a notification time in relation to the proposed agreement and that the Applicant had been genuinely trying to reach an agreement with the Respondent. The Commission decided to grant the application and issued an Order separately in PR747856.

The Fair Work Commission granted the Applicant's application for a protected action ballot order in relation to the employees of the Respondent. The Commission was satisfied that the requirements of section 437 of the Fair Work Act 2009 (Cth) had been met, including the notification time in relation to the proposed agreement and the Applicant's genuine attempts to reach an agreement with the Respondent. An Order was issued separately in PR747856.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established