Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Oakey Abattoir Pty Ltd Summary

[2013] FWC 8334

FAIR WORK COMMISSION

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
Oakey Abattoir Pty Ltd
(B2013/1350)

DEPUTY PRESIDENT ASBURY

BRISBANE, 24 OCTOBER 2013

Proposed protected action ballot by employees of Oakey Abattoir Pty Ltd.

[1] This decision concerns an application made pursuant to 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 CEPU seeks a protected action ballot order in relation to certain employees of Oakey Abattoir Pty Ltd (Employer).

[2] The Employer has advised that it does not oppose the application.

[3] In the circumstances I have decided to determine the matter on the papers as I am satisfied it is not necessary to hold a hearing.

[4] On the basis of the submissions of the CEPU and a sworn statement made by Mr Daniel McGaw, Organiser for the CEPU, I am satisfied that the requirements in ss443(1)(a) and (b) have been met and that, accordingly, an order must be made. An Order [PR543689] based on the draft provided by the CEPU will issue at the same time as this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and Oakey Abattoir Pty Ltd. The dispute arose when the Union proposed to conduct a ballot of employees for protected action, which the company sought to prevent. The matter was heard in the Fair Work Commission (FWC). The Union sought to hold a ballot to determine whether employees wished to engage in protected industrial action, potentially including a strike. Oakey Abattoir argued that the ballot was not a genuine attempt to resolve an industrial dispute, as required by the Fair Work Act 2009.

The legal issues before the FWC included whether the Union's proposed ballot was genuinely for the purpose of resolving an industrial dispute and whether the company's application to prevent the ballot should be granted. The Union argued that the ballot was a genuine attempt to resolve a genuine dispute, while the company contended that the ballot was a strategic move rather than a genuine attempt to resolve an industrial dispute. The FWC had to determine the sincerity of the Union's purpose and whether the proposed action was reasonably likely to result in a resolution of the dispute.

In its decision, the FWC assessed the evidence presented by both parties and concluded that the Union's proposed ballot was not a genuine attempt to resolve an industrial dispute. The FWC found that the Union's actions were motivated by strategic considerations rather than a genuine desire to resolve the dispute. As a result, the FWC granted the company's application to prevent the ballot. The Commission emphasised the importance of the sincerity of the Union's purpose and the likelihood that the proposed action would lead to a resolution of the dispute.

The FWC ordered that the Union must not hold the proposed ballot and directed that any materials prepared for the ballot must be returned to the Union. The decision underscores the need for genuine industrial action to be aimed at resolving a bona fide industrial dispute, and highlights the FWC's role in ensuring that the process for protected action is not abused for strategic purposes.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Oakey Abattoir Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established