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

[2022] FWC 2759

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

Innofield Services Pty Ltd

(B2022/1560)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 14 OCTOBER 2022

Proposed protected action ballot of employees of Innofield Services 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 Innofield Services Pty Ltd (Respondent).

On 14 October 2022, 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 PR746832.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was asked to decide on an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) to conduct a protected action ballot for certain employees of Innofield Services Pty Ltd (the Respondent). The application was made under section 437 of the Fair Work Act 2009 (the Act), which allows unions to seek a ballot order for protected action if they are engaged in good faith bargaining with an employer and have not been able to reach an agreement. The Respondent did not object to the application, leading to the decision being made on the papers without a hearing.

The legal issues before the FWC were whether the Applicant had genuinely attempted to reach an agreement with the Respondent and whether the requirements for a notification time under section 443(1) of the Act had been fulfilled. The Applicant provided a declaration from Ms Chelsea Hill stating the steps taken in bargaining and the efforts made to reach an agreement. The FWC had to assess the material to determine if the Applicant had acted in good faith and if the statutory requirements were satisfied.

The FWC found that the Applicant had genuinely tried to reach an agreement with the Respondent and had met the notification time requirement. The declaration provided by Ms Hill and the lack of objection from the Respondent were key factors in the decision. The FWC was satisfied that the Applicant had taken the necessary steps and fulfilled the requirements under the Act. Consequently, the FWC granted the application for a protected action ballot order.

The FWC issued an order in PR746832, allowing the Applicant to proceed with the ballot for protected action. The decision emphasised the importance of good faith bargaining and the procedural requirements under the Act in determining the eligibility for a protected action ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established