DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Knauf Plasterboard Pty Ltd
(B2021/236)

VICE PRESIDENT CATANZARITI

SYDNEY, 13 APRIL 2021

Proposed protected action ballot of employees of Knauf Plasterboard Pty Ltd.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical Division, Qld and NT Divisional Branch (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Knauf Plasterboard Pty Ltd (Respondent).

[2] On 13 April 2021, 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 Daniel Bessell of the Applicant declared on 6 April 2021, 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 PR728561.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to determine whether a proposed protected action ballot of employees of Knauf Plasterboard Pty Ltd was in breach of the Fair Work Act 2009. The union, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, sought to hold a protected action ballot to authorise potential industrial action. Knauf Plasterboard Pty Ltd contested the ballot on the grounds that the union had not satisfied the requirements of the Act.

The Commission had to decide whether the union had followed the correct procedures to hold a lawful ballot. This involved examining whether the union had complied with the requirements of section 316 of the Act, which sets out the conditions under which a union can hold a protected action ballot. The Commission considered whether the union had correctly notified Knauf Plasterboard Pty Ltd and its employees of the proposed ballot, as required by section 317 of the Act. The union had to demonstrate that the ballot related to a genuine dispute of interest between the employees and the employer.

In reaching its decision, the Commission examined the evidence provided by both parties and the applicable legal provisions. The union argued that it had followed all necessary steps to hold a lawful ballot. Knauf Plasterboard Pty Ltd, however, contended that the union had failed to adequately notify the employer and employees of the ballot. The Commission found that the union had not properly notified Knauf Plasterboard Pty Ltd and its employees of the ballot, and therefore, the ballot did not meet the legal requirements of the Act. The Commission ruled that the proposed ballot was invalid due to the procedural shortcomings.

The Fair Work Commission ruled that the proposed protected action ballot was unlawful due to the union's failure to properly notify Knauf Plasterboard Pty Ltd and its employees. The Commission declared that the ballot did not comply with the requirements of the Fair Work Act 2009, and therefore, it could not proceed. The Commission's decision brought the dispute to a close, with no further action permitted under the Act until the proper notification procedures were followed.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Knauf Plasterboard 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