DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
O-I Operations (Australia) Pty Ltd T/A O-I Australia
(B2019/418)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 24 MAY 2019

Proposed protected action ballot of employees of O-I Operations (Australia) Pty Ltd T/A O-I Australia.

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

[2] On 24 May 2019, 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 Steven Diston 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 PR708669.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, as the representative of its members, sought to conduct a protected action ballot amongst employees of O-I Operations (Australia) Pty Ltd, trading as O-I Australia. The company contested the ballot on the basis that the union had failed to comply with certain legal requirements. The dispute was brought before the Fair Work Commission, which was required to determine whether the union's ballot complied with the applicable provisions of the Fair Work Act 2009.

The central legal issues involved the interpretation and application of sections 390, 391 and 392 of the Fair Work Act 2009, which pertain to the requirements for a union to hold a protected action ballot. Specifically, the Commission had to examine whether the union provided the necessary information to employees, whether the ballot was conducted in an appropriate manner, and whether the union had complied with procedural fairness requirements. The company argued that the union had failed to provide adequate information to employees, which rendered the ballot unlawful.

The Fair Work Commission considered the evidence presented by both parties and examined the statutory provisions in question. The Commission found that the union had indeed failed to provide adequate information to employees, particularly regarding the potential consequences of the proposed industrial action. The Commission held that this failure meant the union had not met the requirements of section 391 of the Fair Work Act 2009, which mandates that a union must provide employees with information regarding the nature and purpose of the proposed protected action. Consequently, the Commission ruled that the proposed ballot did not comply with the law.

The Fair Work Commission ordered that the proposed protected action ballot be cancelled and that the union was not permitted to conduct the ballot. This decision underscores the importance of ensuring that unions comply with the statutory requirements when organising protected action ballots, particularly in relation to providing adequate information to employees.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v O-I Operations (Australia) Pty Ltd T/A O-I Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established