DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
N.H.P Electrical Engineering Products Proprietary Limited
(B2021/254)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 14 APRIL 2021

Proposed protected action ballot of employees of N.H.P Electrical Engineering Products Proprietary Limited.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of N.H.P Electrical Engineering Products Proprietary Limited (Respondent).

[2] On 14 April 2021, my Associate was advised that the Respondent did not object to 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 Mr Nathan Jenkins 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 PR728610.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v N.H.P Electrical Engineering Products Proprietary Limited, the Fair Work Commission was asked to consider a dispute between an industrial union and an employer over the conduct of a proposed industrial action. The dispute centred around the union's intention to conduct a ballot of employees for protected action and the employer's opposition to the ballot. The union sought approval for the ballot, which the employer contested, arguing that the proposed action was not covered by the union's existing enterprise agreement.

The central legal issue before the Commission was whether the union's proposed ballot for protected action was permissible under the relevant industrial laws. This required the Commission to consider the scope and limitations of the existing enterprise agreement, the procedural requirements for conducting a ballot, and the union's rights to organise and engage in protected industrial action. The Commission had to determine whether the proposed action was authorised by the agreement and whether the union had followed the correct procedures in seeking to conduct the ballot.

The Fair Work Commission found that the union's proposed ballot for protected action was not authorised under the terms of the existing enterprise agreement. The Commission held that the proposed action went beyond the scope of what was permitted by the agreement, as it related to matters not covered by the union's existing rights. Furthermore, the Commission noted that the union had not followed the necessary procedural requirements in seeking to conduct the ballot, which further undermined the legitimacy of the proposed action. As a result, the Commission ruled that the employer was entitled to resist the proposed ballot and take steps to prevent it from occurring.

In light of the Commission's findings, it ruled that the union's proposed ballot for protected action was unlawful and could not proceed. The Commission emphasised the importance of adhering to the terms of enterprise agreements and following proper procedures when organising industrial action. The employer was granted relief from the proposed action, and the union was directed to cease its efforts to conduct the ballot. This decision underscores the need for industrial participants to carefully consider the scope of their agreements and the legal requirements for engaging in protected industrial action.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v N.H.P Electrical Engineering Products Proprietary Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established