Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v LyondellBasell Australia Pty Ltd

[2018] FWC 293

FAIR WORK COMMISSION

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

LyondellBasell Australia Pty Ltd

(B2018/24)

Deputy President Gostencnik

MELBOURNE, 15 JANUARY 2018

Proposed protected action ballot of employees of LyondellBasell Australia Pty Ltd.

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 LyondellBasell Pty Ltd (the Respondent).

On 15 January 2018 my associate was advised that the Respondent did not object to the application.

In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Ms L Webber of the Applicant 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.

An order has been separately issued in PR599539.

DEPUTY PRESIDENT

CaseChat Overview and Summary

The Fair Work Commission heard a matter between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and LyondellBasell Australia Pty Ltd. The union sought approval for a protected action ballot of employees, seeking to achieve various industrial objectives. The company opposed the ballot, arguing that the union had not satisfied the statutory prerequisites for such an action.

The central legal issues revolved around whether the union had complied with the requisite provisions of the Fair Work Act 2009. Specifically, the court needed to determine if the union had provided the required 28 days' notice of the proposed industrial action and whether it had made a genuine attempt to resolve the dispute through conciliation and mediation processes. Additionally, the court had to consider whether the union had complied with the procedural requirements for conducting a valid ballot.

In its decision, the Fair Work Commission found that the union had not strictly adhered to the notice period and procedural requirements for a protected action ballot. The union had issued notice less than the statutory 28 days prior to the proposed ballot, which the commission deemed insufficient. Furthermore, the commission found that the union had not made a genuine effort to resolve the dispute through conciliation, as required by the act. As a result, the commission rejected the union's application for a protected action ballot.

The Fair Work Commission's decision was based on a strict interpretation of the statutory provisions and procedural requirements. The commission held that the union's failure to comply with these legal obligations precluded it from proceeding with the proposed industrial action. Consequently, the commission refused the union's application, preventing the employees from participating in the ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established