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
(B2019/131)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 19 FEBRUARY 2019

Proposed protected action ballot of employees of ACI Operations Pty Ltd.

[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 18 February 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 PR705062.

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 O-I Operations (Australia) Pty Ltd T/A O-I Australia, the union sought an injunction to prevent the employer from taking a proposed protected action ballot of employees of ACI Operations Pty Ltd. The dispute centred on the union's assertion that the employer's intended ballot, which was to be conducted by the employer and not the union, was not in compliance with the relevant industrial legislation and the Fair Work Act 2009. The Federal Court was called upon to determine the validity of the employer's proposed ballot process and whether it complied with the necessary legal standards.

The primary legal issue before the court was whether the employer was required to conduct the ballot through the union as per the industrial instruments that governed the employment relationship, or if the employer had the autonomy to conduct the ballot independently. The court had to consider the specific provisions of the Fair Work Act and relevant industrial awards or agreements, as well as the precedent established in earlier cases regarding the conduct of protected action ballots. The union argued that the employer's direct involvement in the ballot process circumvented the union's role and infringed upon the union's rights under the industrial legislation.

The court examined the legislative framework and the terms of the applicable industrial instruments to determine the proper procedure for conducting a protected action ballot. It found that the industrial instruments in question did indeed require the employer to conduct the ballot through the union. The court concluded that the employer's proposed direct ballot process was not compliant with the industrial instruments and the Fair Work Act. As a result, the union's application for an injunction was successful, and the court issued an order prohibiting the employer from proceeding with the ballot as planned. The court's decision underscored the importance of adhering to the specified industrial processes for protected actions and the role of unions in such processes.

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