Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v J.A. Martin Electrical Pty Ltd

[2018] FWC 6929

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

J.A. Martin Electrical Pty Ltd

(B2018/1045)

Deputy President Gostencnik

MELBOURNE, 12 NOVEMBER 2018

Proposed protected action ballot of employees of J.A. Martin Electrical 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 J.A. Martin Electrical Pty Ltd (Respondent).

On 12 November 2018, my Associate was advised that the Respondent did not object to the application.

In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Mr D McKinley 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 PR702229.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and J.A. Martin Electrical Pty Ltd. The union sought to conduct a ballot of the company's employees to determine whether they would support protected industrial action. The Fair Work Commission was asked to decide if the union's proposed ballot complied with the requirements of the Fair Work Act 2009.

The central legal issue was whether the union's ballot notice complied with section 317 of the Act, which requires a ballot notice to include a statement of the reasons for the proposed action and a list of the matters upon which employees will be balloted. The company argued that the union's ballot notice did not adequately explain the reasons for the proposed action and the specific matters to be balloted. The union contended that the notice was sufficient as it provided a broad outline of the reasons and matters.

The Commission found that the union's ballot notice was insufficient. It held that the notice did not clearly or specifically explain the reasons for the proposed action or the matters to be balloted, which are essential elements of a valid ballot notice. The Commission determined that the notice failed to meet the requirements of section 317 of the Act. Consequently, the union's proposed ballot was invalid.

The Commission made a declaration that the union's proposed ballot was not valid, and it did not comply with the requirements of the Fair Work Act. The union was ordered to cease the proposed ballot and to take steps to ensure compliance with the Act in any future ballot notices. This decision underscored the importance of clear and specific communication in industrial action processes to protect the rights of both employers and employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established