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

[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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) recently dismissed an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) for a protected action ballot order against GlaxoSmithKline Australia Pty Ltd (GSK). The employees of GSK sought to take protected action, namely, a strike or other industrial action, in a dispute over their employment terms and conditions. The Union's application for a ballot order was dismissed by the FWC on the basis that it did not meet the requirements of section 440 of the Fair Work Act 2009.

The Union argued that the application met all the requirements of section 440, including that the application was in writing, contained the details specified in the section, and was accompanied by the prescribed fee. However, the FWC found that the application was defective in several respects. Firstly, the Union did not include a statement of the dispute in the application, as required by section 440(2)(a). Secondly, the Union did not include a statement of the action that the employees intended to take, as required by section 440(2)(b). Finally, the Union did not provide evidence that it had taken reasonable steps to notify all the employees who may be affected by the proposed action, as required by section 440(2)(d).

The FWC found that these defects were fatal to the Union's application, and that the application did not meet the requirements of section 440. The FWC noted that it was not appropriate to exercise its discretion under section 445 to accept the application as validly made, as the Union had not taken reasonable steps to notify all the employees who may be affected by the proposed action. The FWC also noted that the Union had not provided any evidence to support its claim that it had taken reasonable steps to notify the employees, and that it was not satisfied that the Union had complied with its obligations under the Fair Work Act.

The FWC dismissed the Union's application for a protected action ballot order, and made no orders in relation to the application. The Union has the right to appeal the FWC's decision to the Federal Court of Australia. However, the Union must first lodge an application for permission to appeal within 21 days of the FWC's decision. If the Federal Court grants permission to appeal, the Union may then appeal the FWC's decision on the merits.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established