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
(B2021/660)

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 - Plumbing Division Queensland Divisional Branch (CEPU) 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 Michael Edward Wiech of the CEPU made on 10 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 PR732693.

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, initiated a protected action ballot for employees of Mater Misericordiae Limited, a Catholic health and aged care provider. Mater Misericordiae sought an injunction to prevent the union from conducting the ballot, claiming that the union did not have the right to hold the ballot because it was not an appropriate bargaining representative. The case was heard in the Fair Work Commission. The legal issues before the Commission were whether the union was the appropriate bargaining representative for the employees and whether the union had the right to hold a protected action ballot.

The Commission found that the union was not the appropriate bargaining representative for the employees because it was not the only union registered to represent the employees, and the employees had not elected the union as their bargaining representative. The Commission also found that the union did not have the right to hold a protected action ballot because it was not the appropriate bargaining representative. The Commission noted that the union had not provided any evidence that it had been elected by the employees as their bargaining representative, and that the employees had not made any such election. The Commission concluded that the union's ballot was not protected action within the meaning of the Fair Work Act.

The Commission granted the injunction sought by Mater Misericordiae, preventing the union from conducting the ballot. The Commission emphasised the importance of the appropriate bargaining representative being elected by the employees, and the need for the union to follow the correct procedures to hold a protected action ballot. The Commission noted that the employees had the right to choose their own bargaining representative, and that the union could not simply assume that it was the appropriate bargaining representative without evidence to support this claim.

In light of the findings, the Commission made an order that the union was restrained from conducting the ballot and from taking any further action in relation to the ballot. The Commission also ordered that the union pay Mater Misericordiae's costs of the application.

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