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

[2022] FWC 1886

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

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

Manildra Energy Australia Pty Limited

(B2022/681)

VICE PRESIDENT CATANZARITI

SYDNEY, 19 JULY 2022

Proposed protected action ballot of employees of Manildra Energy Australia Pty Limited

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 (Cth) (Act) for a protected action ballot order in relation to certain employees of Manildra Energy Australia Pty Limited (Respondent).

On 19 July 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

On the basis of the material before me, including the statutory declaration of Stewart Edward of the Applicant declared on 13 July 2022, 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 PR743913.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was called upon to determine an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) for a protected action ballot order in relation to certain employees of Manildra Energy Australia Pty Limited (Respondent). The Applicant sought to hold a ballot of its members to authorise industrial action, as permitted under section 437 of the Fair Work Act 2009 (Cth). The Respondent did not oppose the application, and the matter was decided on the papers without a hearing. The Applicant had provided a statutory declaration from Stewart Edward, outlining the union's efforts to negotiate with the Respondent and confirming that it had been, and was, genuinely trying to reach an agreement.

The legal issues before the Commission were whether the union had satisfied the statutory requirements for holding a protected action ballot and if the notification period for the proposed agreement had been met. Under section 437 of the Fair Work Act, a union can apply for an order allowing members to vote on protected action, provided certain conditions are fulfilled. One such condition is that the union must have genuinely attempted to negotiate in good faith with the employer. Additionally, section 443(1) of the Act stipulates that a notification period must elapse before the ballot can be held. The Commission had to assess if these conditions were met based on the evidence presented.

The Vice President of the Fair Work Commission, Catanzariti, found that the union had indeed satisfied the statutory requirements for holding a ballot. The statutory declaration provided by the Applicant demonstrated that it had genuinely attempted to negotiate with the Respondent in good faith. Furthermore, the Vice President was satisfied that the notification period for the proposed agreement had been met, in accordance with section 443(1) of the Act. As a result, the application for a protected action ballot order was granted.

The Fair Work Commission issued an Order permitting the union to hold a ballot of its members to authorise industrial action. This decision was made without a hearing, given the Respondent's lack of opposition and the evidence presented by the Applicant. The specific details of the Order can be found in PR743913.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established