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

[2017] FWC 6128

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

(B2017/1097)

Deputy President Gostencnik

MELBOURNE, 21 NOVEMBER 2017

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 (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of LyondellBasell Australia Pty Ltd (Respondent).

On 21 November 2017 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 Mr T Knight 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 PR597915.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered a dispute 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 ballot of its members employed by LyondellBasell, to ascertain their willingness to participate in protected action. LyondellBasell opposed the ballot, asserting that the union's proposed action was not protected action as defined by the Fair Work Act 2009. The matter was heard by the Fair Work Commission, which needed to determine whether the proposed action constituted protected action and whether the union had satisfied the requirements to hold a ballot.

The Commission examined whether the proposed action met the criteria for protected action as outlined in the Fair Work Act. This involved assessing whether the action was undertaken for a "primary purpose" related to a workplace matter, and whether it was conducted in accordance with the provisions of the Act. The Commission also considered the union's compliance with the procedural requirements for holding a ballot, including the provision of a protected action ballot notice to the employer. In delivering its decision, the Commission found that the proposed action was indeed protected action and that the union had complied with the necessary procedures.

Having concluded that the proposed action was protected action and that the union had met the procedural requirements, the Commission approved the ballot. The Commission determined that the union had demonstrated that the proposed action was for a primary purpose related to a workplace matter, and that the union had followed the necessary steps to hold a ballot. Consequently, the Commission ordered that the union could proceed with the ballot as proposed. This decision ensures that the union can effectively communicate with its members regarding the proposed action, while also upholding the legal framework governing protected action in the workplace.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established