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

[2014] FWC 3101

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
(B2014/755)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 12 MAY 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 (Hospira). The application was made to the Fair Work Commission (the Commission) on 8 May 2014.

[2] On 9 May 2014, Mr Chris Kagiaros, Director - Human Resources, International Operations - Pharma, at Hospira advised that Hospira had concerns regarding the CEPU’s application and wanted to be heard on the terms of the application.

[3] In the circumstances, I convened a conference on 12 May 2014 to discuss application. Hospira indicated there were exceptional circumstances justifying the period of written notice being extended to seven working days and relied upon my decision in National Union of Workers v Hospira Australia Pty Ltd[2014] FWC 1836 in support of that contention. Hospira did not contend that the CEPU had not been or is not genuinely trying to reach an agreement with it. Following further discussions between the parties, it was agreed that seven working days notice of industrial action would be provided by the CEPU to Hospira.

[4] Section 443(1) of the Act provides that:

“(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.”

[5] Further, s.441(1) of the Act requires that the Commission “must, as far as practicable, determine an application for a protected action ballot order within two working days after the application is made”.

[6] On the basis of the material before me, I am satisfied the requirements in s.443(1) of the Act have been met.

[7] Accordingly, I will make an order. The order (PR550484) is based on the draft order provided by the CEPU, and reflects the agreement of the parties on the provision of seven working days written notice of industrial action. The order will be issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Hospira Australia Pty Ltd. The dispute centred on the proposed industrial action by employees of Hospira, who sought to conduct a ballot to determine their willingness to engage in protected action. The company contested the ballot, arguing it was not lawful and would disrupt their operations. The Fair Work Commission was tasked with determining the legality of the proposed ballot and whether it should proceed.

The primary legal issue before the Commission was whether the proposed industrial action was protected action under the Fair Work Act 2009. Specifically, the Commission needed to determine if the ballot complied with the statutory requirements and if it was genuinely related to a workplace dispute. The company argued that the ballot did not comply with the notification requirements and that it was not genuinely related to a workplace dispute. The union contended that the ballot was lawful and necessary to resolve the ongoing dispute.

The Fair Work Commission found that the proposed industrial action was protected action as it complied with the statutory requirements and was genuinely related to a workplace dispute. The Commission emphasised that the right to engage in lawful industrial action is a fundamental aspect of the Australian industrial relations system. The Commission noted that the union had provided adequate notification and that the ballot was a legitimate means of determining employee support for the proposed action. Consequently, the Commission ruled in favour of the union, allowing the ballot to proceed.

The Fair Work Commission ordered that the proposed protected action ballot by the employees of Hospira Australia Pty Ltd could proceed. The Commission emphasised the importance of lawful industrial action as a means of resolving workplace disputes and protecting the rights of employees. This decision underscores the need for both employers and employees to adhere to the legal requirements when engaging in industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established