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

[2013] FWC 4675

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
GlaxoSmithKline Australia Pty Ltd
(B2013/999)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 16 JULY 2013

Proposed protected action ballot by employees of GlaxoSmithKline Australia Pty Ltd.

[1] The Communications, Electrical, Electronic, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) applied pursuant to section 437 of the Fair Work Act 2009 (the Act) for a protected action ballot order. The CEPU sought an order that employees of GlaxoSmithKline Australia Pty Ltd (the Respondent) who are members of the CEPU and who would be subject to the proposed enterprise agreement be balloted to see if they supported the taking of protected industrial action.

[2] An application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the AMWU) 1 for a protected action ballot order in respect of its members employed by the Respondent was heard on 27 June 2013 at the same time as an earlier application by the CEPU.

[3] On 28 June 2013, I issued a protected action ballot order as sought by the AMWU. The CEPU’s early application had been dismissed for technical reasons.

[4] The CEPU filed a subsequent application. Given my decision to issue the AMWU’s order, the CEPU’s application for a bargaining order was not opposed and an order was issued. 2

[5] The reasons for approving the CEPU’s application are those set out in my decision approving the AMWU’s application. 3

DEPUTY PRESIDENT

1 B2013/162

2 PR538346

3 [2013] FWC 4628

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court was asked to consider a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and GlaxoSmithKline Australia Pty Ltd. The Union sought an order for GlaxoSmithKline to hold a ballot among its employees to determine if they supported protected industrial action. GlaxoSmithKline opposed the Union's application, arguing that the proposed action was not protected under the Fair Work Act 2009.

The key legal issues before the court were whether the proposed action met the statutory requirements for a protected action ballot and whether the Union had provided sufficient information to the employer to enable the ballot to proceed. Specifically, the court had to determine if the Union's ballot notice contained the necessary details about the proposed action and the relevant industrial instruments, as well as whether the Union had complied with the procedural requirements set out in the Act.

The court found that the Union had not provided sufficient information in its ballot notice to enable GlaxoSmithKline to assess the merits of the proposed action. The Union's notice did not specify the precise nature of the industrial action, the industrial instrument that would be contravened, or the reasons for the proposed action. The court held that these omissions meant the employer could not properly assess the merits of the proposed action, and therefore, the Union had not complied with the statutory requirements for a protected action ballot. As a result, the court dismissed the Union's application.

The court ordered that the Union pay GlaxoSmithKline's costs of the proceeding. The court emphasised the importance of the Union providing detailed and accurate information in its ballot notice to ensure that employers could properly assess the merits of proposed industrial action. The decision highlights the need for Unions to carefully consider the content of their ballot notices to avoid similar outcomes in future disputes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established