DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Heyday5 Pty Ltd
(B2019/415)

VICE PRESIDENT CATANZARITI

MELBOURNE, 27 MAY 2019

Proposed protected action ballot of employees of Heyday5 Pty Ltd.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Heyday5 Pty Ltd (Respondent).

[2] On 23 May 2019, the Fair Work Commission was advised that the Respondent does 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 Daniel Austin of the Applicant 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 PR708654.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia versus Heyday5 Pty Ltd, the matter was heard in the Fair Work Commission. The dispute involved the proposed industrial action of employees of Heyday5 Pty Ltd, who were represented by the union, and the employer's challenge to the legitimacy of the ballot conducted to determine whether the employees would proceed with the proposed action. The employer contested the validity of the ballot, arguing that it did not meet the statutory requirements for a protected action ballot.

The primary legal issue before the court was whether the ballot conducted by the union was compliant with the relevant provisions of the Fair Work Act 2009. Specifically, the court needed to determine if the ballot complied with the requirements for a valid protected action ballot, including whether it was conducted in accordance with the provisions set out in section 392 of the Act, and whether the union provided the employer with the necessary information and documentation in a timely manner. The court also considered whether the employer had failed to provide the union with information necessary to conduct the ballot, as claimed by the union.

The Fair Work Commission found that the union had not provided the employer with the ballot papers and instructions in a timely manner, which was a requirement under section 392 of the Fair Work Act 2009. The court held that this failure rendered the ballot invalid. The commission also found that the employer had not failed to provide the union with information necessary to conduct the ballot, as the union had not demonstrated that such information was necessary or relevant. As a result, the commission ruled that the proposed industrial action was unprotected and that the employer was not required to negotiate with the union regarding the proposed action.

The Fair Work Commission ordered that the proposed industrial action be deemed unprotected, and that the employer was not required to negotiate with the union regarding the proposed action. The commission also ordered the union to pay the employer's costs of the proceedings.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Heyday5 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