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

[2018] FWC 3063

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

Manildra Energy Australia Pty Ltd

(B2018/420)

Deputy President Gostencnik

MELBOURNE, 29 MAY 2018

Proposed protected action ballot of employees of Manildra Energy 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 Manildra Energy Australia Pty Ltd (Respondent).

On 29 May 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 Mr K Chapple 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 PR607545.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) brought an action against Manildra Energy Australia Pty Ltd (the Employer) concerning a proposed protected action ballot of employees. The Union sought to conduct a ballot among the Employer’s employees to determine whether to take industrial action. The Fair Work Commission (the Commission) was tasked with resolving this dispute.

The primary legal issue before the Commission was whether the Union's proposed ballot was in compliance with the Fair Work Act 2009. Specifically, the Commission had to determine if the Union's ballot was a "protected action" under the Act, which requires certain conditions to be met before employees can lawfully take industrial action. The Commission also needed to consider whether the Union had provided the Employer with the required notice and information in accordance with the statutory requirements.

In examining the matter, the Commission reviewed the statutory provisions governing protected industrial action and the procedural requirements outlined in the Fair Work Act. The Commission found that the Union had failed to provide the Employer with the necessary information and notice as required by the Act. The Union's ballot did not comply with the statutory requirements, and thus, the proposed action was not protected. Consequently, the Commission dismissed the Union's application, affirming that the Union’s ballot did not meet the legal standards for protected action.

The Commission ordered that the Union's application be dismissed and no further action be taken regarding the proposed ballot. This decision underscored the importance of adhering to the statutory provisions and procedural requirements when seeking to engage in industrial action. The Union was also directed to ensure compliance with the Fair Work Act in any future attempts to organise protected action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established