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

[2013] FWC 4214

[2013] FWC 4214

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
(B2013/987)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 28 JUNE 2013

Application for Protected Action Ballot Order by employees of GlaxoSmithKline Australia Pty Ltd dismissed - Application did not meet requirements under s.440.

[1] On 25 June 2013 an application pursuant to s.437 of the Fair Work Act 2009 (the Act) was made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU).

[2] The application sought that the Fair Work Commission (the Commission) issue a protected action ballot order for ETU members who are employed at the Boronia site of GlaxoSmithKline Australia Pty Ltd (the employer). The application was opposed by the employer.

[3] Subdivision B of Division 8 - Protected Action Ballots of the Act provides amongst other things, the requirements that the Commission must consider if it is to issue a protected action ballot order.

[4] Section 440 of the Act provides as follows:

440 Notice of application

Within 24 hours after making an application for a protected action ballot order, the applicant must give a copy of the application to the employer of the employees who are to be balloted, and:

(a) if the application specifies a person that the applicant wishes to be the protected action ballot agent—that person; or

(b) otherwise—the Australian Electoral Commission.

[5] During the course of the hearing, it became evident to the Commission that the ETU had not notified the Australia Electoral Commission as prescribed by s.440(b) of the Act.

[6] Section 441 of the Act provides as follows:

441 Application to be determined within 2 days after it is made

(1) The FWC must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made.

(2) However, the FWC must not determine the application unless it is satisfied that each applicant has complied with section 440.

[7] As the ETU had not complied with s.440 of the Act, at the time of the determination, the application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Kelvin Reidy - ETU

Hearing details:

2013

Melbourne

June 27

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