DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Lai Switchboard Australia Pty Ltd
(B2015/738)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 27 JULY 2015

Proposed protected action ballot of employees of Lai Switchboard Australia Pty Ltd.

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

[2] On 27 July 2015 my associate was advised that the Respondent Company 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 Colin Williams of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, I am satisfied that the requirements in s. 443(1) of the Act have been met.

[5] An order has been issued separately in PR569845.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia brought proceedings against Lai Switchboard Australia Pty Ltd in the Fair Work Commission. The union sought authorisation for a protected action ballot of employees of Lai Switchboard Australia Pty Ltd, alleging that the employer had breached an enterprise agreement by reducing the employees' base rate of pay. The union argued that the employer's actions constituted a "significant change" to the terms of the enterprise agreement, entitling the union to conduct a ballot for protected industrial action. Lai Switchboard Australia Pty Ltd denied the union's claims, arguing that the changes to the employees' pay rates were not a breach of the enterprise agreement.

The legal issues before the Commission included whether the changes to the employees' pay rates constituted a "significant change" to the enterprise agreement, and whether the union was entitled to conduct a ballot for protected industrial action as a result of the alleged breach. The Commission considered the relevant provisions of the Fair Work Act 2009 (Cth) and the terms of the enterprise agreement itself. The Commission also considered the principles of statutory interpretation and the need to give effect to the intentions of the parties to the enterprise agreement.

After considering the evidence and arguments presented by both parties, the Commission found that the changes to the employees' pay rates did constitute a "significant change" to the enterprise agreement. The Commission held that the union was therefore entitled to conduct a ballot for protected industrial action. However, the Commission also found that the union's proposed ballot was not appropriately tailored to the specific changes to the enterprise agreement, and was therefore not authorised. The Commission held that the union was entitled to conduct a ballot for protected industrial action in relation to the specific changes to the enterprise agreement, but not for any other purpose.

The Commission authorised the union to conduct a ballot for protected industrial action in relation to the specific changes to the enterprise agreement, but not for any other purpose. The Commission also ordered the employer to take steps to remedy the breach of the enterprise agreement by restoring the employees' base rate of pay to the level specified in the agreement. The employer was also ordered to pay the union's costs of the proceedings.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Lai Switchboard 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