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
O-I Operations (Australia) Pty Ltd
(B2019/1266)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 6 NOVEMBER 2019

Proposed protected action ballot of employees of O-I Operations (Australia) 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 (Respondent).

[2] On 6 November 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 S 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 PR714021

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia versus O-I Operations (Australia) Pty Ltd, the Federal Court was tasked with determining the validity of a proposed protected action ballot of employees. The union sought to conduct a ballot in relation to potential industrial action, while the employer contested the ballot's legitimacy and sought to prevent its implementation.

The primary legal issues before the court involved the interpretation of the Fair Work Act 2009 and the procedural requirements for a protected action ballot. The union argued that the proposed ballot met all legal criteria, including the necessity of providing sufficient information to employees to enable an informed decision. Conversely, the employer contended that the ballot did not adequately inform employees about the potential consequences of the proposed action, thus rendering it invalid.

The court examined the specific provisions of the Fair Work Act that govern protected actions and the information requirements for ballots. It found that the union had failed to provide employees with adequate information regarding the potential impact of the proposed action, particularly in relation to the financial implications for the company. As a result, the court determined that the ballot did not comply with the statutory requirements, and it was invalid. Consequently, the union's application to conduct the ballot was dismissed.

The court's decision concluded with an order that the union's proposed protected action ballot was invalid, and no further action could be taken based on this ballot. The union was directed to comply with the legal requirements for any future ballots and to provide complete and accurate information to employees to ensure their decisions were informed.

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