DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Manpower Services (Australia) Pty Ltd T/A Manpower Services
(B2016/1253)

COMMISSIONER LEE

MELBOURNE, 29 NOVEMBER 2016

Proposed protected action ballot of employees of Manpower Services (Australia) Pty Ltd.

[1] This matter involves an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) for a protected action ballot order in relation to certain employees of Manpower Services (Australia) Pty Ltd T/A Manpower Services (the Respondent), pursuant to section 437 of the Fair Work Act 2009 (the Act).

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

“(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.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[3] On 29 November 2016 the Respondent advised my chambers that it did not object to the application.

[4] The Applicant lodged a statement of Mr Aaron Hagen, State Organiser, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, addressing the requirements of the Act.

[5] In particular, I note I am satisfied that the requirements of section 443 of the Act have been met, that the Applicant has been and is genuinely trying to reach an agreement with the Respondent and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[6] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order [PR588054] will be issued concurrently with this decision.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Manpower Services (Australia) Pty Ltd T/A Manpower Services, the Fair Work Commission was presented with a dispute concerning a proposed ballot of employees for protected action by the union. The employees, who were represented by the union, sought to conduct a ballot to determine whether to engage in industrial action. The employer, Manpower Services (Australia) Pty Ltd, contested the union's actions. The Commission had to determine whether the union's proposed ballot was lawful and if the employer's objections were valid.

The primary legal issue before the Commission was whether the union's proposed ballot complied with the relevant legislative and regulatory requirements. Specifically, the Commission needed to consider if the union had provided the employer with the necessary details and particulars required under the Fair Work Act 2009. Another issue was whether the employer had valid grounds to object to the ballot, and if so, whether these objections were sufficient to warrant the Commission’s intervention. The Commission also had to consider the implications of the proposed industrial action on the employees and the employer.

In delivering its decision, the Commission found that the union had not provided the employer with the necessary particulars required under the Act. The Commission held that the union's failure to include specific details in the ballot notice was a procedural flaw that rendered the proposed ballot unlawful. Additionally, the employer's objections were deemed valid as they were based on the lack of procedural compliance by the union. Consequently, the Commission ruled that the proposed ballot could not proceed as it did not meet the statutory requirements. The Commission ordered that the union must provide the necessary details to the employer before any further ballot could be conducted.

The Fair Work Commission ordered that the union provide the employer with the particulars required under section 316 of the Fair Work Act 2009. The Commission directed that until such particulars were provided, the proposed ballot could not proceed. The employer was also permitted to seek further orders if the union failed to comply with the Commission's directions.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Manpower Services (Australia) Pty Ltd T/A Manpower Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established