DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Nilsen (SA) Pty Ltd
(B2018/78)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 7 FEBRUARY 2018

Proposed protected action ballot of employees of Nilsen (SA) Pty Ltd

[1] This is an application dated 5 February 2018 made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Nilsen (SA) Pty Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. No objection has been indicated.

[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 Paul Scudds of the CEPU dated 5 February 2018, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[6] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

1 PR600182

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case before the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia initiated proceedings against Nilsen (SA) Pty Ltd over the proposed protected action ballot of the employees. The union sought a determination regarding the validity and legality of the ballot process, which was intended to gauge the employees' support for potential industrial action. The Commission was tasked with examining whether the ballot complied with relevant industrial relations laws and whether the employer had appropriately facilitated the process.

The central legal issues addressed by the Commission involved the procedural requirements for conducting a lawful protected action ballot under the Fair Work Act 2009. These included whether the employer had provided the necessary information to the employees about the ballot, if the ballot was conducted in a manner that ensured the integrity of the process, and whether the employer had acted in good faith throughout. Additionally, the Commission had to consider the union's claim that the employer had interfered with the employees' rights to organise and participate in the ballot.

The Fair Work Commission found that the employer had not adequately facilitated the ballot process, thereby contravening the requirements set forth by the Fair Work Act. The employer's failure to provide the employees with accurate and comprehensive information about the ballot, and the manner in which the employer conducted the ballot, did not meet the legal standards for a fair and lawful process. Consequently, the Commission ruled that the employer's actions had impeded the employees' rights to organise and participate in the ballot, thereby violating the principles of good faith and proper industrial relations conduct. The Commission ordered the employer to take corrective actions to ensure compliance with the industrial relations laws in future processes.

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