DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
O&M Pty Ltd
(B2018/621)

COMMISSIONER MCKINNON

MELBOURNE, 23 JULY 2018

Proposed protected action ballot of employees of O&M Pty Ltd.

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

[2] On 23 July 2018 the Respondent advised that it did not oppose 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 Peter Mooney 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 PR609205.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Fair Work Commission involved a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the "Union") and O&M Pty Ltd (the "Employer"). The Union sought to conduct a protected action ballot among the employees of O&M Pty Ltd to gauge support for potential industrial action. The Employer opposed the ballot, arguing it would cause unnecessary disruption to the business operations and potentially harm the company’s reputation.

The legal issues central to the dispute centred on the rights of the Union to conduct the ballot under the Fair Work Act 2009 and whether the potential detriment to the Employer outweighed the Union's right to organise. Specifically, the court needed to determine whether the proposed ballot met the statutory requirements and whether any detriment to the Employer was disproportionate to the Union's rights.

The Fair Work Commission evaluated the application by considering the provisions of the Fair Work Act, which provide for the right of employees to take protected action and the Union's right to organise. The Commission concluded that the Union had satisfied the pre-conditions for holding the ballot, including the requirement that the ballot be for the purpose of ascertaining the views of the employees. The court further considered the potential impact on the Employer, weighing the disruption against the Union’s right to organise and ascertain employee sentiment. Ultimately, the Commission found that the potential detriment to the Employer was not disproportionate to the Union's right to organise, and thus, the ballot could proceed.

The Fair Work Commission ordered that the Union be permitted to conduct the proposed protected action ballot among the employees of O&M Pty Ltd, subject to the statutory requirements and conditions set out in the order. The Employer's objections were overruled, and the Union was granted the right to proceed with the ballot in accordance with the provisions of the Fair Work Act.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v O&M 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