DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Fenner Dunlop Australia Pty Ltd
(B2021/446)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 25 JUNE 2021

Proposed protected action ballot of employees of Fenner Dunlop 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 Fenner Dunlop Australia Pty Ltd (Respondent).

[2] On 25 June 2021, my Associate was advised that the Respondent did not object to 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 Ms Chelsea Hill 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 PR731084.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court of Australia considered a matter between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Fenner Dunlop Australia Pty Ltd. The dispute centred around the Union's proposed protected action ballot of the employees of Fenner Dunlop Australia Pty Ltd. The Union sought to conduct the ballot under the Fair Work Act 2009 (Cth), intending to inform the employees about the potential for protected action. Fenner Dunlop opposed the ballot, arguing that it did not comply with the requirements of the Act.

The court had to determine whether the Union's ballot met the statutory criteria for a protected action ballot. Key issues included the timing of the ballot, the content of the ballot paper, and the manner in which the ballot was to be conducted. The court examined whether the Union's ballot complied with the procedural requirements outlined in section 386 of the Fair Work Act 2009 (Cth). Additionally, the court considered whether the Union had adhered to the relevant provisions of the Fair Work Regulations 2009 (Cth).

The court found that the Union's proposed ballot did not comply with the statutory requirements for a protected action ballot. The ballot paper was deemed to be misleading and not neutral, as it contained language that could influence the employees' voting decisions. The court further determined that the ballot did not provide sufficient information for employees to make an informed decision. Consequently, the Union's application for authorisation of the ballot was dismissed. The court emphasised the importance of neutrality and clarity in the communication of ballot materials to ensure that employees could make informed decisions about protected action.

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