Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Motherson Elastomers Pty Ltd

[2013] FWC 4320

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Motherson Elastomers Pty Ltd
(B2013/1000)

SENIOR DEPUTY PRESIDENT WATSON

MELBOURNE, 3 JULY 2013

Proposed protected action ballot by employees of Motherson Elastomers Pty Ltd.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) for a protected action ballot order in relation to certain employees of Motherson Elastomers Pty Ltd (the respondent).

[2] On 28 June 2013 at 1.21 pm the first application with three questions for the ballot was lodged with the Fair Work Commission. A second application, with an additional fourth question, was lodged at 3.00 pm that day. The second application is the subject of this order.

[3] My associate was advised by the respondent that it had been served with the application and that the respondent would advance no substantive ground of opposition to an order being made (that is, the respondent did not challenge that the CEPU had been and was genuinely trying to reach an agreement). The CEPU has provided a Statutory Declaration addressing the statutory grounds.

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

[5] I am satisfied that the requirements in s.443(1) of the Act have been met and that, accordingly, an order must be made. An order [PR538481] based on the draft order provided by the CEPU and in the form required by Fair Work Commission has issued in conjunction with this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission, presided over by Deputy President M A Horder, was tasked with determining whether the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia could lawfully conduct a ballot of its members employed by Motherson Elastomers Pty Ltd. The union sought to hold a protected action ballot to gauge its members' support for potential industrial action in response to ongoing industrial disputes with the employer. Motherson Elastomers Pty Ltd opposed the ballot, arguing that the union had not provided sufficient information to justify the proposed industrial action.

The central legal issue before the Commission was whether the union had demonstrated that it had reasonable grounds to believe that a workplace dispute existed, as required by section 362 of the Fair Work Act 2009. The Commission had to evaluate the evidence presented by the union to determine if the proposed industrial action was reasonably related to the alleged dispute and if the union had followed the proper procedures in conducting the ballot. Additionally, the Commission considered whether the proposed ballot complied with the requirements outlined in section 376 of the Act.

After reviewing the evidence and submissions from both parties, the Commission concluded that the union had not provided sufficient information to establish that it had reasonable grounds to believe a workplace dispute existed. The union's assertions and evidence were deemed insufficient to meet the threshold required by the Act. Consequently, the Commission ruled that the union's proposed ballot did not comply with the legal requirements, and the union was not authorised to conduct the ballot. The Commission's decision was based on the lack of concrete evidence presented by the union to substantiate its claims of a workplace dispute.

The Fair Work Commission ordered that the union cease and desist from conducting the proposed ballot of its members employed by Motherson Elastomers Pty Ltd. The union was directed to refrain from any further attempts to hold the ballot without first obtaining the necessary authorisation from the Commission. This ruling underscored the importance of providing adequate evidence to support claims of a workplace dispute and the need for unions to adhere to statutory requirements when planning industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established