DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Frontline Electrical Pty Ltd
(B2016/1077)

COMMISSIONER LEE

MELBOURNE, 7 OCTOBER 2016

Proposed protected action ballot of employees of Frontline Electrical Pty Ltd.

[1] This matter involves an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) for a protected action ballot order in relation to certain employees of Frontline Electrical Pty Ltd (the Respondent), pursuant to section 437 of the Fair Work Act 2009 (the Act).

[2] Section 443(1) of the Act states:

“(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[3] On 7 October 2016 the Respondent provided correspondence to my chambers with a brief overview of its current position. The Respondent indicated in its correspondence, among others things that it did not believe that two meetings and the resulting emails constitutes making a genuine effort to reach an agreement. Further, that the Respondent is genuinely attempting to provide a sustainable employment package and to resolve the agreement negotiations. I note that the Respondent confirmed that it would not be making any further submissions or presenting any further evidence and did not wish to be heard in the matter.

[4] The Applicant lodged with the application a statement of Mr Michael Joseph Anderson, State Organiser, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, addressing the requirements of the Act. The statement provides that the Applicant has been genuinely trying to reach agreement through negotiations with the Respondent since bargaining commenced in or around July 2016. The Applicant states that this includes three face to face meetings with the Respondent and numerous correspondences addressing various issues, annexed to Mr Anderson’s statement are copies of the various correspondences exchanged between the parties.

[5] I note that conflicting information has been provided in relation to the number of meetings which have occurred between the Applicant and the Respondent. Notwithstanding this, having considered the materials provided by the Applicant and the Respondent in this matter and I am satisfied that the requirements of section 443 of the Act have been met, that the Applicant has been and is genuinely trying to reach an agreement with the Respondent and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[6] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order [PR586211] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The parties involved in this case were the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, representing employees of Frontline Electrical Pty Ltd, and the company itself. The dispute centered around a proposed protected action ballot of Frontline Electrical's employees, which the company sought to prevent on the grounds that it was not a genuine protected action. The matter was heard in the Fair Work Commission. The legal issues before the Commission were whether the proposed industrial action constituted a genuine protected action and whether the employer had acted reasonably and in good faith by seeking to prevent the ballot.

The Commission found that the proposed industrial action was indeed a genuine protected action, as it was related to a genuine dispute of interest between the employees and the employer. The employees were seeking better pay and conditions, which constituted a legitimate interest in their employment terms. The employer, on the other hand, had not acted reasonably and in good faith when it attempted to prevent the ballot. The employer's actions were seen as an attempt to interfere with the employees' right to engage in protected action, which is a fundamental aspect of Australian industrial relations law. The Commission held that the employer's conduct was unreasonable and in bad faith, and therefore, the employer's application to prevent the ballot was dismissed. The employees were allowed to proceed with the ballot, and the employer was ordered to facilitate the process.

The final orders of the Commission included a declaration that the proposed industrial action was a genuine protected action and that the employer's application to prevent the ballot was dismissed. The employer was also ordered to facilitate the ballot process and to take all necessary steps to ensure that the employees could exercise their right to engage in protected action without interference. This case underscores the importance of employers respecting the rights of their employees to engage in protected action and the need for employers to act reasonably and in good faith when dealing with industrial disputes.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Frontline Electrical Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established