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

[2023] FWC 834

The attached document replaces the document previously issued with the missing above code on 5 April 2023.

Missing MNC of [2023] FWC 834 and reference number of <PR760922> added.

Associate to Deputy President Clancy.

Dated 6 April 2023.

[2023] FWC 834

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

ICS Industries Pty Ltd

(B2023/316)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 5 APRIL 2023

Proposed protected action ballot of employees of ICS Industries 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 (Act) for a protected action ballot order in relation to certain employees of ICS Industries Pty Ltd (Respondent).

On 5 April 2023, my Associate was advised that the Respondent did not object to 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 declaration of Ms Chelsea Hill 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.

An order has been separately issued in PR760923.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, seeking a protected action ballot order for certain employees of ICS Industries Pty Ltd. This application was made under section 437 of the Fair Work Act 2009. The dispute centred on the employees' proposed protected action, which the union sought to validate through a ballot. The respondent, ICS Industries Pty Ltd, did not object to the application, and the matter was determined by Deputy President Clancy on the basis of the written submissions and without a hearing. The Commission's decision was influenced by the union's declaration that it had genuinely attempted to reach an agreement with the respondent and that the notification time for the proposed agreement had been met.

The primary legal issue the Commission had to resolve was whether the union had fulfilled the requirements under section 437 of the Fair Work Act 2009 to hold a protected action ballot. This involved verifying that the union had engaged in good faith bargaining with the employer and that the statutory notification period had elapsed. The union's declaration and the absence of objections from the employer were critical in addressing this issue. The Commission also needed to ensure that the union's application complied with the provisions of section 443(1) of the Act, which pertains to the conditions for a protected action ballot.

After considering the evidence, Deputy President Clancy concluded that the union had satisfied the prerequisites for a protected action ballot. The union's declaration, which detailed its bargaining efforts and adherence to the notification period, played a pivotal role in the decision. Given the absence of objections from the employer and the union's compliance with the statutory requirements, the Commission was satisfied that the union had met the necessary criteria. Consequently, the application for a ballot order was approved, and an order was issued in accordance with section 437 of the Fair Work Act 2009.

In light of the decision, the Fair Work Commission issued an order permitting the union to conduct a ballot among the specified employees of ICS Industries Pty Ltd. This order was issued under the authority of the Commonwealth Government Printer and was documented under the reference PR760923. The outcome effectively allowed the union to proceed with the ballot, enabling the employees to express their views on the proposed protected action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established