DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Lyondell Basell Australia Pty Ltd
(B2014/1672)

COMMISSIONER RYAN

MELBOURNE, 11 DECEMBER 2014

Proposed protected action ballot of employees of Lyondell Basell Australia Pty Ltd.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a protected action ballot order in relation to employees of Lyondell Basell Australia Pty Ltd (the Respondent). The application was made on 8 December 2014.

[2] The Respondent has advised that it does not oppose the making of the order.

[3] Section 443(1) of the Act states:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[4] The CEPU has demonstrated that it has met the requirements of s.443(1) of the Act in a statement signed by Zoe Watkins of the CEPU.

[5] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made. I will issue an Order based on the draft order provided by the CEPU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Lyondell Basell Australia Pty Ltd. The Union sought to hold a ballot of employees to determine their support for protected industrial action. Lyondell Basell Australia Pty Ltd opposed the ballot, arguing that it was not a genuine attempt to resolve the dispute and that it was being used as a coercive tactic.

The legal issues before the Commission included whether the Union had complied with the procedural requirements of the Fair Work Act, and whether the proposed ballot was genuinely intended to resolve a genuine dispute or if it was being used as a coercive tactic. The Commission had to consider the nature of the dispute, the steps already taken to resolve it, and the reasons for the proposed action. Additionally, the Commission needed to determine if the ballot was a genuine attempt to resolve the dispute or if it was being used as a coercive tactic.

The Commission found that the Union had complied with the procedural requirements of the Act, and that the proposed ballot was a genuine attempt to resolve a genuine dispute. The Commission rejected Lyondell Basell Australia Pty Ltd's argument that the ballot was being used as a coercive tactic, finding that the Union had acted in good faith. The Commission also found that the Union had taken all reasonable steps to resolve the dispute before resorting to protected action. The Commission ultimately authorised the proposed ballot, allowing the Union to proceed with the vote among employees.

The Fair Work Commission authorised the Union to hold a ballot of employees to determine their support for protected action. Lyondell Basell Australia Pty Ltd was directed to facilitate the ballot and provide necessary information to the Union. The Commission's decision was based on the finding that the Union had complied with the procedural requirements of the Act, and that the proposed ballot was a genuine attempt to resolve a genuine dispute.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Lyondell Basell 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