DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Integrated Maintenance Services Pty Ltd
(B2018/1113)

DEPUTY PRESIDENT MASSON

MELBOURNE, 30 NOVEMBER 2018

Proposed protected action ballot of employees of Integrated Maintenance Services Pty Ltd.

[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 Integrated Maintenance Services Pty Ltd (Respondent).

[2] On 30 November 2018, 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 D Timmers 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 PR702767.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered a matter brought by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia against Integrated Maintenance Services Pty Ltd. The union sought authorisation for a protected action ballot of employees, to be conducted via electronic means. The employer opposed the ballot on various grounds, including concerns about potential disruption to its operations and the risk of employees being influenced by union representatives during the voting process. The matter was heard in the Commission, with the primary focus on whether the proposed ballot met the statutory requirements under the Fair Work Act 2009.

The central legal issues involved the interpretation of the Act, specifically sections 391 and 392, which set out the conditions for a protected action ballot. The Commission needed to determine whether the union's proposed method of conducting the ballot complied with the requirements, and whether the employer's concerns about potential disruptions and improper influence were valid. Additionally, the Commission examined the balance between the union's right to organise and the employer's right to conduct its business without undue interference.

After considering the evidence and arguments presented by both parties, the Commission found that the union's proposed ballot complied with the statutory requirements. The Commission noted that the union had taken reasonable steps to ensure the integrity of the voting process, including measures to prevent improper influence. While acknowledging the potential for some disruption, the Commission held that this was a necessary consequence of the union's right to organise and was outweighed by the importance of allowing employees to exercise their right to participate in protected action. The employer's concerns were not deemed sufficient to warrant denying the union's application.

The Commission authorised the union to conduct the proposed ballot via electronic means, subject to certain conditions designed to maintain the integrity of the process. The employer was directed to facilitate the ballot, and both parties were required to co-operate in good faith to ensure the process proceeded smoothly. The decision underscores the importance of balancing the rights of unions and employers in the context of protected industrial action.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Integrated Maintenance Services 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