DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Joy Global Australia Pty Ltd
(B2018/796)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 6 SEPTEMBER 2018

Proposed protected action ballot of employees of Joy Global Australia 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 Joy Global Australia Pty Ltd (Respondent).

[2] On 5 September 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 B Currey 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 PR700168.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to determine the validity of a proposed industrial action ballot organised by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. The respondents, Joy Global Australia Pty Ltd, challenged the ballot on the grounds that it did not comply with statutory requirements. The dispute centred around the union's proposed industrial action, which included a strike, and the union's failure to provide adequate notice of the ballot. The commission was required to assess whether the union had fulfilled its obligations under the Fair Work Act 2009.

The legal issues before the commission involved the interpretation of the Fair Work Act, specifically sections related to protected industrial action, notice requirements, and the validity of ballots. The primary focus was on whether the union's ballot complied with the legislative prerequisites, including the provision of written particulars of the protected action and ensuring that the ballot was conducted in a manner that allowed for meaningful participation by the employees. The commission also had to consider the procedural fairness in the union's handling of the ballot and whether there were any grounds for invalidating the ballot process.

The commission found that the union had failed to provide the employees with written particulars of the proposed industrial action, as required by the Fair Work Act. This omission rendered the ballot invalid. The commission emphasised the importance of compliance with statutory obligations, noting that the failure to provide written particulars was a significant procedural error. Consequently, the commission ruled that the ballot was not valid and ordered that no protected action be taken in reliance on the ballot. The decision highlighted the necessity for unions to adhere strictly to legislative requirements to ensure the validity of any proposed industrial action.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Joy Global Australia 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