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

[2023] FWC 372

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

Ingham Enterprises Pty Ltd

(B2023/103)

VICE PRESIDENT CATANZARITI

MELBOURNE, 15 FEBRUARY 2023

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

On 15 February 2023, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Bradley McDougall of the Applicant declared on 10 February 2023, 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 PR750619.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission received an application from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) for an order allowing a protected action ballot under section 437 of the Fair Work Act 2009 (the Act) in relation to certain employees of Ingham Enterprises Pty Ltd (the Respondent). The Applicant sought the order to facilitate a ballot of its members to determine whether to engage in protected action in response to bargaining with the Respondent. The Respondent did not oppose the application, and the matter proceeded without a hearing. The Vice President was satisfied, based on the material provided, that the Applicant had genuinely attempted to reach an agreement with the Respondent and that the notification time for the proposed agreement had elapsed.

The primary legal issue before the Vice President was whether the conditions for a protected action ballot under section 437 of the Act were met. Specifically, the Vice President needed to determine if the Applicant had genuinely been attempting to reach an agreement with the Respondent and if the notification time for the proposed agreement had passed. Section 443(1) of the Act required the Vice President to consider these factors before making a decision on the application. The Vice President also needed to ensure that the Applicant's request complied with the procedural requirements outlined in the Act.

The Vice President found that the Applicant had genuinely attempted to reach an agreement with the Respondent and that the notification time for the proposed agreement had elapsed. The statutory declaration of Bradley McDougall of the Applicant, declared on 10 February 2023, outlined the steps taken by the Applicant in bargaining with the Respondent and confirmed its genuine efforts to reach an agreement. As the Respondent did not oppose the application, and the Vice President was satisfied with the material provided, the conditions for a protected action ballot were met. Consequently, the Vice President decided to grant the Applicant's application for a protected action ballot order.

The Fair Work Commission issued an Order allowing the protected action ballot to proceed in accordance with the provisions of the Fair Work Act 2009. This decision ensures that the employees of Ingham Enterprises Pty Ltd can exercise their rights under the Act to engage in protected action, should they choose to do so following the ballot process. The Order was separately issued in PR750619.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established