DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
ICS Industries Pty Ltd
(B2019/640)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 9 AUGUST 2019

Proposed protected action ballot of employees of ICS Industries Pty Ltd.

[1] This is an application by 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 8 August 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 PR711206.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court of Australia heard a case brought by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia against ICS Industries Pty Ltd. The union sought to conduct a protected action ballot of the employees of ICS Industries. The primary dispute centred on whether the union had the right to call for such a ballot under the Fair Work Act 2009. The employer contested the union's right to organise the ballot, asserting that the union did not have the requisite majority support from the relevant employees. The court was tasked with determining the validity of the union's claim and the employer's objections.

The legal issues before the court revolved around the interpretation and application of the Fair Work Act 2009, specifically focusing on the provisions that govern protected action ballots. The court had to consider whether the union had demonstrated sufficient support from the employees, as required by the Act, and whether the employer's objections were valid and substantiated. The central issue was whether the union's application to conduct the ballot complied with the statutory requirements and whether the employer's opposition was justified.

In delivering the judgment, the court found that the union had not provided adequate evidence to support its claim that it had the necessary majority support from the employees. The union's evidence was deemed insufficient to satisfy the legal requirements, and the employer's objections were considered valid. The court ruled that the union's application to conduct a protected action ballot should be dismissed. The reasoning was grounded in the need for clear and compelling evidence to support the union's claim, a standard that was not met in this instance.

The court ordered that the union's application to conduct a protected action ballot of the employees of ICS Industries Pty Ltd be dismissed. The union was required to cease any further attempts to organise the ballot without the necessary evidence of majority support from the employees. The employer's objections were upheld, and the union was directed to adhere to the statutory requirements when seeking to organise future ballots.

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