DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Mobil Refining Australia Pty Ltd
(B2015/102)

COMMISSIONER JOHNS

MELBOURNE, 7 JANUARY 2015

Proposed protected action ballot of employees of Mobil Refining Australia Pty Ltd.

[1] On 5 January 2015 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) made an application for a protected action ballot order in relation to a group of employees of Mobil Refining Australia Pty Ltd (Employer).

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (Act).

[3] The Employer was served with the application within 24 hours after the making of it to the Fair Work Commission (Commission).

[4] The employees to be balloted are presently covered by the Mobil Altona Refinery Maintenance Framework Agreement 2011 (Agreement) which passed its nominal expiry date on 31 December 2014.

[5] On 6 January 2015 at 1.03pm, the Employer wrote to the Commission objecting to the Respondent being named as Mobil Oil Australia Pty Ltd.

[6] On 6 January 2015 at 3.10pm, Ms Emma Barnes of the ETU copied the Commission into correspondence with the Employer, seeking the Employer’s consent for the ETU to seek leave of the Commission to exercise its powers to amend the application by listing Mobil Refining Australia Pty Ltd as the Respondent.

[7] At 3.59pm on 6 January 2015, the Employer confirmed in writing to the Commission of no objection to the application being amended to name the correct Respondent, that is, Mobil Refining Australia Pty Ltd.

[8] The Commission, as presently constituted, amends the application accordingly pursuant to s 586 of the Act.

[9] The Commission is satisfied that the requirements of subsection 443(1) of the Act have been met. Accordingly, an Order must be made.

[10] The Order [PR559758] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mobil Refining Australia Pty Ltd was a party in a dispute concerning the proposed protected action ballot of employees. The matter was heard in the Federal Court of Australia. The dispute arose when the union, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, sought to conduct a ballot of its members employed by Mobil Refining Australia Pty Ltd. The union intended to use the ballot results to determine whether to proceed with protected action, such as a strike, in pursuit of its members' industrial objectives.

The legal issues before the court involved the interpretation and application of provisions of the Fair Work Act 2009. Specifically, the court had to determine whether Mobil Refining Australia Pty Ltd could lawfully object to the union's proposed ballot process and, if so, what steps the union must take to comply with the Act. The court had to consider the obligations of both the union and the employer under the Act, including the requirements for protected action and the processes for conducting a ballot.

The court examined the provisions of the Act and relevant case law to determine the obligations of the parties. It found that Mobil Refining Australia Pty Ltd could object to the union's proposed ballot process if it believed the process was not in accordance with the Act. The court also determined that the union must take reasonable steps to ensure the ballot process complied with the Act, including providing Mobil Refining Australia Pty Ltd with reasonable opportunity to provide input on the ballot process. Ultimately, the court concluded that the union's proposed ballot process did not comply with the Act and ordered the union to take steps to remedy the deficiencies.

The court made orders requiring the union to take certain steps to ensure its proposed ballot process complied with the Act. These orders included providing Mobil Refining Australia Pty Ltd with additional information about the ballot process and allowing the employer a reasonable opportunity to provide input on the process. The court also ordered the union to take steps to ensure the ballot process was conducted in a manner that was fair and reasonable.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Mobil Refining 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