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

[2022] FWC 2556

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

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

OGS Australia Pty Ltd

(B2022/1404)

VICE PRESIDENT CATANZARITI

SYDNEY, 23 SEPTEMBER 2022

Proposed protected action ballot of employees of OGS Australia Pty Ltd

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 (Cth) (Act) for a protected action ballot order in relation to certain employees of OGS Australia Pty Ltd (Respondent).

On 20 September 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Ian Gill of the Applicant declared on 16 September 2022, 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.

An Order has been separately issued in PR746142.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide on an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) for a protected action ballot order in relation to certain employees of OGS Australia Pty Ltd (Respondent). The matter was determined on the papers without a hearing, as the Respondent did not oppose the application. The Applicant sought the order under s.437 of the Fair Work Act 2009 to conduct a ballot for protected action due to ongoing negotiations with the Respondent. The Applicant claimed to be genuinely trying to reach agreement and had fulfilled the notification time requirements under s.443(1) of the Act.

The legal issue before the Commission was whether the conditions under s.437 of the Act for granting a protected action ballot order were met. This involved assessing whether the Applicant had been genuinely trying to reach agreement with the Respondent and whether the statutory notification period had been adhered to. The Commission needed to determine if the Applicant had provided sufficient evidence to satisfy these criteria, based on the material presented, including the statutory declaration by Ian Gill of the Applicant.

The Commission found that the Applicant had indeed been genuinely trying to reach an agreement with the Respondent, as evidenced by the statutory declaration and the steps taken in bargaining. The Commission was also satisfied that the notification time requirements had been met. Consequently, the Commission decided that the conditions for granting the ballot order were fulfilled. An order was subsequently issued in PR746142.

The final orders included granting the Applicant's request for a protected action ballot order, allowing the union to proceed with the ballot for protected action in accordance with the provisions of the Fair Work Act 2009. This decision ensures that the union can take necessary steps to resolve the dispute with the Respondent, provided the ballot process adheres to the legal requirements set out in the Act.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established