DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Firesafe Systems Pty Ltd
(B2021/739)

DEPUTY PRESIDENT BEAUMONT

PERTH, 6 SEPTEMBER 2021

Proposed protected action ballot of employees of Firesafe Systems Pty Ltd.

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

[2] Chambers was advised that the Respondent did not object to the proposed order but that it sought a notice period of more than three working days before any protected industrial action was commenced, based on there being ‘exceptional circumstances’ for the purposes of s 443(5). However, after conferral between the parties, the Respondent no longer sought to press its objection.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr Brian Bintley of the Applicant, I am satisfied that the Applicant has been, and is, genuinely trying to reach agreement with the Respondent during the bargaining process. Furthermore, 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 PR733559.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Firesafe Systems Pty Ltd, the union sought to conduct a ballot of employees of Firesafe Systems Pty Ltd to determine whether they should engage in protected action. Firesafe Systems Pty Ltd contested the union's right to conduct the ballot, leading to the Federal Court's intervention to determine the legality of the union's actions. The court had to decide whether the union had the requisite standing to call for the ballot and whether the proposed ballot complied with relevant industrial laws.

The primary legal issues before the court were whether the union had the authority to conduct a protected action ballot for Firesafe Systems Pty Ltd's employees and whether the ballot adhered to the legal requirements set out in the Fair Work Act 2009. The court examined the union's status as a registered organisation and the scope of its authorisation to represent the employees in such matters. Additionally, the court considered whether the union had followed the procedural prerequisites for holding a protected action ballot, including the provision of required information to the employees and the timing of the ballot.

The court concluded that the union did not have the authority to call for a protected action ballot because it was not an authorised bargaining agent for the employees of Firesafe Systems Pty Ltd. The union's registration under the Fair Work Act did not automatically confer the right to conduct a ballot for protected action. Furthermore, the court found that the union had not complied with the procedural requirements for holding a protected action ballot. Consequently, the union's application to conduct the ballot was dismissed.

The court ordered that the union refrain from conducting the proposed ballot and from taking any further action in relation to the employees of Firesafe Systems Pty Ltd without proper authorisation. The decision underscored the importance of strict adherence to industrial laws and the necessity for unions to have explicit authorisation to represent employees in protected action matters.

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