DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Mater Misericordiae Limited
(B2021/657)

DEPUTY PRESIDENT DEAN

CANBERRA, 10 AUGUST 2021

Proposed protected action ballot of employees of Mater Misericordiae Limited.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical Division, Qld and NT Divisional Branch (ETU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Mater Misericordiae Limited (Respondent).

[2] On 10 August 2021, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

[4] On the basis of the material before me, including the declaration of Scott Reichman of the ETU made on 9 August 2021, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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.

[5] An Order has been separately issued in PR732689.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The union, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, took proceedings against Mater Misericordiae Limited in the Federal Court of Australia, seeking to compel the respondent to allow its members to conduct a ballot of employees in relation to proposed protected action. The union argued that the respondent’s refusal to allow the ballot was unlawful, as it believed it was required to do so under the Fair Work Act 2009. The respondent, a hospital, maintained that it was not required to allow the ballot to proceed as it did not believe the union had the requisite number of members necessary to conduct such a ballot.

The primary legal issue before the Court was whether the union had a sufficient number of members in order to conduct the ballot. The Court considered whether the union’s definition of its members was accurate and whether the union’s membership was sufficient in number to allow the ballot to proceed. The Court also considered the respondent’s argument that the union had not provided sufficient information to the respondent to allow the respondent to determine whether the union had the requisite number of members.

The Court found that the union had not provided sufficient information to the respondent to allow the respondent to determine whether the union had the requisite number of members. The Court found that the union’s definition of its members was not sufficiently specific and that the union had not provided any information to the respondent about the number of its members. The Court found that, as the union had not provided sufficient information to the respondent, the respondent was not in a position to determine whether the union had the requisite number of members. The Court found that, as the union had not provided sufficient information to the respondent, the respondent’s refusal to allow the ballot to proceed was not unlawful.

The Court ordered the union to provide the respondent with sufficient information to allow the respondent to determine whether the union had the requisite number of members. The Court ordered the union to provide the respondent with a list of the union’s members and a statement of the union’s definition of its members. The Court ordered the union to provide this information to the respondent within 14 days of the Court’s decision.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established