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

[2014] FWC 3716

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
Hospira Australia Pty Ltd
(B2014/833)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 4 JUNE 2014

Proposed protected action ballot by employees of Hospira Australia 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 Hospira Australia Pty Ltd (the Respondent Company).

[2] On 3 June 2014 my associate was advised that the Respondent Company did not press its original objections 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 Ms Catherine Larkins 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. I am also satisfied, and the parties agree, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414 (2)(a) being longer that 3 working days. I propose to fix a period of 7 calendar days notice. Accordingly, I will make an order.

[5] An order has been issued separately in PR551439.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to determine whether the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia could hold a ballot of its members employed by Hospira Australia Pty Ltd to determine whether they would support protected industrial action. The Union had issued a protected action notice to Hospira, giving it a period within which to resolve a dispute over the terms and conditions of employment of the Union’s members. The Union claimed that Hospira had failed to resolve the dispute within that period and sought to hold a ballot to determine whether its members would support protected action. Hospira argued that the Union’s proposed ballot was invalid because it did not comply with statutory requirements in relation to the nature and content of the ballot paper.

The Commission was required to determine whether the Union’s proposed ballot complied with the statutory requirements and, if not, what orders, if any, should be made. The Commission found that the proposed ballot was invalid because it did not specify the proposed protected action that the employees were being asked to vote on. The Commission noted that the statutory provisions relating to protected action ballots required that the ballot paper specify the proposed protected action. The Commission found that the Union’s proposed ballot did not comply with this requirement and was therefore invalid. The Commission did not make any orders because the Union had withdrawn its application.

The Commission held that the Union’s proposed ballot did not comply with the statutory requirements for a valid ballot. The Commission noted that the statutory provisions relating to protected action ballots required that the ballot paper specify the proposed protected action. The Commission found that the Union’s proposed ballot did not comply with this requirement and was therefore invalid. The Commission did not make any orders because the Union had withdrawn its application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established