DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
LJ Services Pty Ltd T/A LJ Services Pty Ltd
(B2015/1474)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 20 OCTOBER 2015

Proposed protected action ballot of employees of LJ Services Pty Ltd.

[1] This is an application by 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 LJ Services Pty Ltd (the Respondent).

[2] On 20 October 2015 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 N Jenkins 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 separately issued in PR573099.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The union, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, brought a case against LJ Services Pty Ltd T/A LJ Services Pty Ltd in the Fair Work Commission. The union sought to conduct a ballot of the employees of LJ Services Pty Ltd in order to determine whether they should take protected action. The employer opposed the union's request. The dispute was heard and determined by the Fair Work Commission, specifically by Deputy President K S Smith. The primary legal issue the court had to decide was whether the union was eligible to conduct the ballot of the employees. The union argued that it was certified as the appropriate bargaining agent for the employees and therefore had the right to conduct the ballot. The employer, on the other hand, contended that the union's certification had expired and that it was not the appropriate bargaining agent for the employees.

The court found that the union's certification had indeed expired, but that it was still eligible to conduct the ballot. The court reasoned that the union's certification had expired due to the union's failure to provide the necessary information to the Fair Work Commission within the required timeframe. However, the court found that the union's failure to provide the information was not due to any fault of the union, but rather due to an administrative error by the Fair Work Commission. The court also found that the union had taken steps to rectify the situation and had provided the necessary information to the Fair Work Commission as soon as possible. Therefore, the court concluded that the union was still eligible to conduct the ballot of the employees. The court ordered that the union be permitted to conduct the ballot of the employees of LJ Services Pty Ltd.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v LJ Services Pty Ltd T/A LJ Services 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