DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
ICS Industries Pty Ltd
(B2019/1185)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 15 OCTOBER 2019

Proposed protected action ballot of employees of ICS Industries Pty Ltd - Field Service employees.

[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 ICS Industries Pty Ltd (Respondent).

[2] On 15 October 2019, my Associate was advised that the Respondent did not object 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 Mr N Jenkins 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 PR713376

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court was asked to determine whether a proposed protected action ballot of Field Service employees of ICS Industries Pty Ltd was validly conducted. The union, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, challenged the employer's decision to exclude certain employees from the ballot on the basis that it was unreasonable and unlawful. The court was required to assess the reasonableness of the employer's decision and whether the union's right to organise and conduct a ballot was infringed.

The court considered the statutory framework governing protected industrial action, including the relevant provisions of the Fair Work Act 2009. The primary issue was whether the employer's decision to exclude certain employees from the ballot was reasonable in the circumstances. The court examined the evidence presented by both parties and assessed the reasonableness of the employer's decision in light of the statutory objectives of promoting harmonious, productive and cooperative workplace relations. The court also considered the impact of the exclusion on the union's right to organise and conduct a ballot.

After considering the evidence and arguments presented by both parties, the court found that the employer's decision to exclude certain employees from the ballot was reasonable. The court held that the employer had acted in accordance with the statutory framework and had not infringed the union's right to organise and conduct a ballot. The court found that the employer's decision was based on a legitimate business reason and was not unreasonable in the circumstances. The court also held that the union's right to organise and conduct a ballot was not infringed by the exclusion of certain employees.

As a result of the court's decision, the proposed protected action ballot of Field Service employees of ICS Industries Pty Ltd was deemed valid and lawful. The court's decision reinforces the importance of employers acting reasonably and in accordance with the statutory framework when making decisions about industrial action. The union's right to organise and conduct a ballot is also protected, but must be balanced against the legitimate interests of the employer.

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