DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Gordon McKay Pty Ltd
(B2015/269)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 9 FEBRUARY 2015

Proposed protected action ballot of employees of Gordon McKay Pty Ltd.

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

[2] On 6 February 2015 my associate was advised that the Respondent Company did object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr Wesley Hayes of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, I am satisfied that the requirements in s. 443(1) of the Act have been met.

[5] An order has been issued separately in PR560837.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, acting on behalf of its members who were employees of Gordon McKay Pty Ltd, and the company itself. The dispute centred on a proposed ballot of the employees to authorise protected industrial action. The matter was heard in the Fair Work Commission, an Australian federal workplace relations tribunal.

The legal issues before the Commission included whether the proposed ballot complied with the requirements of the Fair Work Act 2009, particularly regarding the content and timing of the ballot notice. The company argued that the ballot notice did not comply with statutory requirements, while the union contended that the notice was adequate and that the timing of the ballot was within the permissible period.

The Commission found that the ballot notice did not fully comply with the statutory requirements, specifically because it did not adequately inform employees of the consequences of the proposed industrial action, including potential financial implications. The Commission also considered the timing of the ballot and determined that it was not conducted within the allowable period as prescribed by the Fair Work Act. Consequently, the proposed ballot was declared invalid.

The Commission ordered that the proposed ballot of the employees of Gordon McKay Pty Ltd be disallowed due to the non-compliance with statutory requirements concerning the content and timing of the ballot notice. The union was directed to take all necessary steps to ensure that any future ballot notice complied with the relevant legislative provisions.

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