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
v
MHE-Demag Australia Pty Ltd
(B2018/613)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 18 JULY 2018

Proposed protected action ballot of employees of MHE-Demag Australia Pty Ltd.

[1] 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 MHE-Demag Australia Pty Ltd (Respondent).

[2] On 17 July 2018 my associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr D McKinley 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.

[5] An order has been separately issued in PR609088.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to determine whether the proposed protected action ballot of employees of MHE-Demag Australia Pty Ltd was lawful. The employees, represented by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, sought to ballot their members to take industrial action over a proposed new enterprise agreement. MHE-Demag Australia Pty Ltd opposed the ballot, arguing that the proposed industrial action was unprotected as it did not relate to the proposed agreement or an existing agreement.

The central legal issues before the Commission were whether the proposed protected action was related to the proposed enterprise agreement, and whether it was protected action under the Fair Work Act 2009. The Commission had to consider the definition of "protected action" in the Act and the relationship between the proposed industrial action and the enterprise agreement.

The Commission found that the proposed protected action was related to the proposed enterprise agreement as it was in response to the employer's refusal to negotiate in good faith. The Commission held that the employees' intention to take industrial action over the proposed agreement was a response to the employer's conduct and was therefore related to the agreement. The Commission also found that the proposed industrial action was protected action under the Act as it related to the proposed enterprise agreement and the employees' terms and conditions of employment.

Accordingly, the Commission ordered that the proposed protected action ballot of employees of MHE-Demag Australia Pty Ltd was lawful and protected action under the Fair Work Act 2009. The employer was directed to allow the employees to proceed with the ballot.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established