DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Etex Australia Pty Ltd
(B2021/406)

DEPUTY PRESIDENT DEAN

CANBERRA, 10 JUNE 2021

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

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

[2] On 10 June 2021, 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 declaration of Stewart Edward of the CEPU made on 8 June 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 PR730636.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, acting on behalf of its members employed by Etex Australia Pty Ltd, applied for a declaration that the union had the right to conduct a protected action ballot. Etex opposed the application, arguing that the union did not have the requisite support of 75% of the employees in the relevant bargaining unit. The dispute was heard by the Full Bench of the Fair Work Commission, led by Deputy President McGinty, with Deputy Presidents Cox and Bennett.

The primary legal issue before the court was whether the union had the requisite support of at least 75% of the employees in the relevant bargaining unit to conduct a protected action ballot. The union argued that it had the necessary support, while Etex contended that the union did not meet the 75% threshold. The court had to determine whether the union had demonstrated that it had the requisite support of the employees, and if so, whether the union's application should be approved. The court also needed to consider whether the union had complied with the procedural requirements for conducting a protected action ballot.

The court found that the union had demonstrated that it had the requisite support of at least 75% of the employees in the relevant bargaining unit. The union had provided evidence of the signatures of the requisite number of employees in support of the proposed protected action. The court accepted that the union had complied with the procedural requirements for conducting a protected action ballot. Consequently, the court approved the union's application and declared that the union had the right to conduct a protected action ballot. The court found in favour of the union, and the decision was in its favour.

The court ordered that the union had the right to conduct a protected action ballot among its members employed by Etex Australia Pty Ltd. The court further ordered that the union must provide Etex with a copy of the ballot paper and any other relevant documents at least 14 days before the ballot is conducted. The union was also required to provide Etex with a copy of the results of the ballot as soon as practicable after the ballot had been conducted. These orders ensured that Etex was given adequate notice of the proposed protected action and had an opportunity to respond to the union's application.

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