DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Keolis Downer Hunter Pty Ltd
(B2020/292)

DEPUTY PRESIDENT DEAN

SYDNEY, 29 MAY 2020

Proposed protected action ballot of employees of Keolis Downer Hunter Pty Ltd.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Keolis Downer Hunter Pty Ltd (Respondent).

[2] On 29 May 2020, the Fair Work Commission was advised that the Respondent did not oppose the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Brad McDougall of the CEPU declared on 25 May 2020, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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 PR719761.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (the Commission) heard a matter involving the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and Keolis Downer Hunter Pty Ltd (the Employer). The Union sought approval for a ballot of its members to consider protected action, specifically a strike, against the Employer. This application arose from the Union's dissatisfaction with the Employer's refusal to negotiate on certain pay and conditions issues.

The primary legal issues the Commission needed to address were whether the Union had complied with the relevant legislative requirements for conducting a protected action ballot and whether the proposed action was genuinely in pursuit of the Union's members' industrial objectives. The Commission had to consider whether the Union had provided sufficient information to its members to make an informed decision about participating in the proposed action and whether the proposed action was genuinely related to the Union's members' industrial objectives.

The Commission found that the Union had adequately notified its members of the proposed protected action and that the ballot would provide a fair opportunity for members to express their views. The Union had provided detailed information about the issues at stake and the potential outcomes of the proposed action. The Commission was satisfied that the Union's members had been given a comprehensive understanding of the issues and the potential consequences of the proposed action. The Commission also determined that the proposed action was genuinely in pursuit of the Union's members' industrial objectives, as the issues related directly to their employment conditions.

The Commission approved the Union's application for a ballot of its members to consider protected action against the Employer. This decision allowed the Union to proceed with the ballot, providing its members with the opportunity to vote on whether to undertake the proposed industrial action.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Keolis Downer Hunter 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