DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
East Coast Services Group Pty Ltd
(B2021/344)

DEPUTY PRESIDENT DEAN

CANBERRA, 25 MAY 2021

Proposed protected action ballot of employees of East Coast Services Group Pty Ltd.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical Division, Qld and NT Divisional Branch (ETU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of East Coast Services Group Pty Ltd (Respondent).

[2] On 25 May 2021, the 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 declaration of Beau Malone of the ETU made on 19 May 2021, 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 PR730151.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and East Coast Services Group Pty Ltd. The Union sought approval for a protected action ballot to be conducted among employees of East Coast Services Group Pty Ltd, seeking to secure improved workplace conditions. East Coast Services Group Pty Ltd opposed the ballot, contending that the proposed industrial action would not be protected and would infringe on the company's operations and the rights of non-participating employees. The case was heard in the Fair Work Commission, which had jurisdiction to adjudicate on matters related to workplace relations and industrial action under the Fair Work Act 2009.

The central legal issue before the Commission was whether the proposed industrial action, as outlined in the ballot, was protected action as defined by the Fair Work Act. Specifically, the Commission needed to determine if the proposed action was a "protected action" and whether it complied with the statutory requirements set out in the Act. This included assessing whether the ballot and the proposed industrial action adhered to the provisions regarding the timing, nature, and scope of protected actions, as well as whether the Union had followed the necessary procedural steps. Additionally, the Commission needed to consider the potential impact of the proposed action on the operations of East Coast Services Group Pty Ltd and the rights of non-union employees.

In reaching its decision, the Commission examined the specific details of the proposed industrial action, including the timing and form of the ballot, as well as the nature of the demands being made by the Union. The Commission also considered the arguments presented by East Coast Services Group Pty Ltd regarding the potential harm to the company's operations and the rights of non-participating employees. After careful consideration of the evidence and legal arguments, the Commission concluded that the proposed ballot and the industrial action it sought to facilitate were indeed protected actions under the Fair Work Act. The Commission found that the Union had adhered to the necessary procedural requirements and that the proposed action did not infringe on the rights of non-participating employees. Consequently, the Commission approved the Union's application for the ballot to proceed.

The Fair Work Commission granted the Union's application for approval of the proposed protected action ballot. The decision allowed the Union to proceed with the ballot among the employees of East Coast Services Group Pty Ltd, enabling them to vote on the proposed industrial action to secure improved workplace conditions. The Commission's decision emphasised the importance of adhering to the statutory requirements for protected actions and the need to balance the rights of unions to organise and take industrial action with the rights of non-union employees and the operational interests of the employer.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v East Coast Services Group 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