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

[2022] FWC 2640

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

Hitachi Energy Australia Pty Ltd

(B2022/1479)

VICE PRESIDENT CATANZARITI

SYDNEY, 30 SEPTEMBER 2022

Proposed protected action ballot of employees of Hitachi Energy Australia Pty Ltd

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 (Cth) (Act) for a protected action ballot order in relation to certain employees of Hitachi Energy Australia Pty Ltd (Respondent).

On 29 September 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Matthew Murphy of the Applicant declared on 28 September 2022, 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.

An Order has been separately issued in PR746382.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was presented with an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, seeking a protected action ballot order for certain employees of Hitachi Energy Australia Pty Ltd. The application was made under section 437 of the Fair Work Act 2009. Hitachi Energy Australia Pty Ltd did not oppose the application, and the matter was determined on the papers without a hearing. The primary objective of the union was to seek approval for a ballot to potentially undertake protected industrial action, given the ongoing negotiations and the union's assertion of good faith efforts to reach an agreement with the employer.

The central legal issue before the FWC was whether the union had satisfied the statutory requirements to hold a protected action ballot under section 437 of the Fair Work Act. This involved verifying that the union had genuinely attempted to negotiate in good faith with the employer and that the conditions for a notification time as outlined in section 443(1) of the Act had been met. The union had to demonstrate that the proposed agreement was related to the employees' terms and conditions of employment and that the requisite notification period had elapsed.

The FWC Vice President, Catanzariti, reviewed the material presented, including a statutory declaration by Matthew Murphy of the union, which detailed the bargaining steps taken and affirmed the union's genuine efforts to reach an agreement. The Vice President found that the union had indeed met the requirements of the Act, particularly that there was a notification time for the proposed agreement and that the union had been genuinely attempting to negotiate. Consequently, the application was approved, and the union was granted the authority to hold a protected action ballot.

The FWC issued an order permitting the union to proceed with the ballot, ensuring that the employees' right to protected action was upheld within the framework of the Fair Work Act. This decision underscores the importance of the negotiation process and the FWC's role in facilitating fair industrial relations practices.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established