Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v FIP Electrical (Tas) Pty Ltd T/A FIP Electrical Tasmania Summary

[2022] FWC 393

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

FIP Electrical (Tas) Pty Ltd T/A FIP Electrical Tasmania

(B2022/109)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 24 FEBRUARY 2022

Proposed protected action ballot of employees of FIP Electrical (TAS) Pty Ltd

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 FIP Electrical (Tas) Pty Ltd T/A FIP Electrical Tasmania (Respondent).

On 23 February 2022, my Associate was advised that the Respondent did not object to 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 declaration of Mr Christopher Clark 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.

An order has been separately issued in PR738701.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and FIP Electrical (Tas) Pty Ltd T/A FIP Electrical Tasmania. The union applied for an order under section 437 of the Fair Work Act 2009 to hold a ballot of the employees for protected action. The application was heard by Deputy President Clancy of the Fair Work Commission. The respondent did not object to the application, leading the Deputy President to decide the matter based on the written submissions without the need for a hearing.

The primary legal issue before the court was whether the union had satisfied the conditions necessary to hold a ballot for protected action as per the Fair Work Act 2009. Specifically, the court needed to determine if the union had genuinely attempted to negotiate in good faith with the employer and if the notification period specified in the Act had been adhered to. These criteria are essential to ensure that the union's actions are legitimate and procedurally correct.

In reaching the decision, Deputy President Clancy reviewed the declaration from Mr. Christopher Clark of the union, which detailed the steps taken in the bargaining process and confirmed that the union had genuinely attempted to reach an agreement with the employer. Additionally, the declaration satisfied the notification requirements outlined in section 443(1) of the Act. Given that the employer did not object to the application and the union's declaration met the statutory requirements, Deputy President Clancy determined that the union had met the necessary conditions to hold a ballot for protected action.

Consequently, the Fair Work Commission issued an order permitting the union to proceed with the ballot of the employees of FIP Electrical (Tas) Pty Ltd. This order was made in light of the union's compliance with the statutory requirements and the absence of any objections from the employer.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v FIP Electrical (Tas) Pty Ltd T/A FIP Electrical Tasmania

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established