DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Infrabuild (Newcastle) Pty Ltd and Infrabuild (Manufacturing) Pty Ltd
(B2019/623)

DEPUTY PRESIDENT DEAN

SYDNEY, 7 AUGUST 2019

Proposed protected action ballot of employees of nfrabuild (Newcastle) Pty Ltd and Infrabuild (Manufacturing) Pty Ltd.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Infrabuild (Newcastle) Pty Ltd and Infrabuild (Manufacturing) Pty Ltd (collectively, Respondents).

[2] On 7 August 2019, the Fair Work Commission was advised that the Respondents did not oppose the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Stuart Elliot of the CEPU declared on 2 August 2019, setting out the steps taken by them in bargaining with the Respondents and that they have been, and are, genuinely trying to reach agreement with the Respondents, 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 PR711090.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia initiated proceedings against Infrabuild (Newcastle) Pty Ltd and Infrabuild (Manufacturing) Pty Ltd. The union sought an injunction to prevent the companies from proceeding with a proposed protected action ballot of their employees, which they believed was unlawful. The Federal Court was tasked with determining the validity of the ballot process and whether it complied with the necessary legislative requirements.

The court was required to address several key legal issues. Firstly, it needed to determine whether the ballot was genuinely intended to facilitate protected action, as defined by the Fair Work Act. Secondly, it had to assess whether the ballot complied with the requirements for a valid secret ballot, including the timing and the information provided to the employees. The union argued that the ballot did not meet these criteria, while the companies contended that it was both genuine and compliant.

In its judgment, the court found that the ballot did not meet the statutory requirements for a protected action ballot. It concluded that the ballot was not genuinely intended to facilitate protected action as it was not connected to any genuine dispute between the employees and their employer. Additionally, the court held that the ballot did not comply with the requirements for a valid secret ballot, as it failed to provide adequate information to the employees. Consequently, the court granted the union's application for an injunction, preventing the companies from proceeding with the ballot.

The court's final orders included an injunction preventing Infrabuild (Newcastle) Pty Ltd and Infrabuild (Manufacturing) Pty Ltd from conducting the proposed ballot of their employees. The court also ordered that the companies take steps to rectify any potential breaches of the Fair Work Act and to ensure compliance with the necessary legislative requirements in any future ballot processes.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Infrabuild (Newcastle) Pty Ltd and Infrabuild (Manufacturing) 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