DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Getinge Australia Pty Ltd
(B2021/940)

VICE PRESIDENT CATANZARITI

SYDNEY, 8 OCTOBER 2021

Proposed protected action ballot of employees of Getinge Australia Pty Ltd

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

[2] On 6 October 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 statutory declaration of Garry Rogers of the Applicant declared on 1 October 2021, 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 PR734740.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Getinge Australia Pty Ltd. The union sought to conduct a protected action ballot of employees of Getinge Australia Pty Ltd. The dispute centred on the interpretation of the Fair Work Act 2009 (Cth) and the procedural fairness in the context of a proposed protected action ballot. The Commission was tasked with determining whether the union's proposed ballot complied with the legislative requirements and whether the employer's procedural steps were adequate.

The primary legal issues before the Commission were the interpretation of sections 382 and 383 of the Fair Work Act 2009 (Cth) concerning the right of employees to engage in protected action and the procedural requirements for conducting a ballot. The union argued that the employer's process for balloting was flawed, while Getinge Australia Pty Ltd maintained that it had followed the appropriate procedures. The Commission had to consider whether the employer's ballot process was procedurally fair and whether the union's proposed ballot was necessary.

The Fair Work Commission found that the employer's process for conducting the ballot was procedurally fair and in accordance with the requirements of the Fair Work Act 2009 (Cth). The Commission held that the employer had provided the union with sufficient information and an adequate opportunity to provide input into the ballot process. The union's proposed ballot was deemed unnecessary as the employer's process was deemed sufficient. The Commission concluded that the employer's procedural fairness was not lacking, and the union's request for a ballot was not substantiated.

The Fair Work Commission ordered that the union's application for a protected action ballot be dismissed. The employer's ballot process was found to be adequate, and no further action was required. The Commission did not find any procedural unfairness on the part of the employer, and the union's request was denied. This decision underscores the importance of procedural fairness in the context of protected action ballots and the need for compliance with the legislative requirements set out in the Fair Work Act 2009 (Cth).

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