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
Nilsen (NSW) Pty Ltd
(B2017/1062)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 9 NOVEMBER 2017

Proposed protected action ballot of employees of Nilsen (NSW) Pty Ltd.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Nilsen (NSW) Pty Ltd (the Respondent).

[2] On 9 November 2017 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 PR597574.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, acting on behalf of its members who were employees of Nilsen (NSW) Pty Ltd, and the employer itself. The union sought authorisation for a protected action ballot to be conducted among the employees, which would allow them to vote on potential industrial action. The employer opposed this request, leading to a dispute that required judicial intervention. The case was heard in the Fair Work Commission, Australia's independent national workplace relations tribunal.

The central legal issues in this case revolved around the conditions under which a protected action ballot could be lawfully conducted. Specifically, the court needed to determine whether the union had provided sufficient evidence to satisfy the prerequisites for such a ballot. These prerequisites include the necessity for the proposed industrial action to be in relation to a "workplace matter," the requirement for the union to reasonably believe that the proposed action would be protected, and the obligation to ensure that the proposed action was not taken in bad faith. The court also had to consider whether the employer had acted in accordance with its obligations under the Fair Work Act 2009.

The Fair Work Commission, after examining the evidence and arguments presented by both parties, concluded that the union had not provided sufficient grounds to justify the proposed protected action ballot. The court found that the union had not adequately demonstrated a reasonable belief that the proposed industrial action would be protected, as required by the Fair Work Act. Additionally, the court determined that the employer had fulfilled its obligations under the legislation, and there was no evidence of bad faith on the part of the employer. As a result, the court denied the union's application for authorisation of the ballot.

In light of the court's findings, the Fair Work Commission dismissed the union's application for authorisation of the proposed protected action ballot. The decision underscores the importance of unions providing robust evidence to support their requests for protected action ballots and highlights the need for employers to comply with their obligations under the Fair Work Act. The court's ruling serves as a reminder for both unions and employers of the legal standards that must be met in such disputes, ensuring that the processes for industrial action are conducted in a fair and lawful manner.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Nilsen (NSW) 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