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

[2017] FWC 3690

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

Orica Australia Pty Ltd

(B2017/582)

Deputy President Gostencnik

MELBOURNE, 14 JULY 2017

Proposed protected action ballot of employees of Orica Australia Pty Ltd.

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

My associate was advised that the Respondent did not object to the application but that it sought a notice period of more than 3 working days before some of the protected industrial action is commenced as there are ‘exceptional circumstances’ for the purposes of s.443(5) which warrant a longer notice period.

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

On the basis of the material before me, including the statutory declaration of Mr C Giddins 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.

The Fair Work Commission may order that the period of notice for protected industrial action referred to in s.414(2)(a) of the Act be longer than three working days, if satisfied that there are exceptional circumstances justifying such an extension. The parties in this application have agreed to an extension and I am satisfied based on the material before me and the statutory declaration of Mr M Addinall of the Respondent that there are exceptional circumstances to justify an extension. I am therefore satisfied to order that the period of notice for protected industrial action referred to in s.414(2)(a) be five working days for all questions, save for questions 12, 20 and 21.

An order has been separately issued in PR594521.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent decision of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Orica Australia Pty Ltd, the Full Bench of the Fair Work Commission was tasked with determining whether the proposed industrial action by employees of Orica Australia Pty Ltd, which was to be undertaken by their union, was protected action. The union sought a declaration that the proposed action would be protected, as well as an order preventing Orica from taking adverse action against employees participating in the proposed action. The dispute arose from ongoing negotiations for a new enterprise agreement and related issues concerning the employees' working conditions.

The primary legal issues before the court were whether the proposed industrial action fell within the scope of protected action under the Fair Work Act 2009 and whether the union had complied with the procedural requirements for organising such action. The union argued that the proposed action was in relation to a "work dispute" as defined in the Act, and that they had followed all necessary steps to organise the action. Orica contended that the action did not relate to a work dispute and that the union had failed to provide the required notice and particulars to Orica.

The Full Bench found that the proposed action related to a genuine work dispute and was therefore protected action. The court concluded that the union had satisfied the requirements for organising protected action, including providing the necessary notice and particulars. The Full Bench rejected Orica's argument that the action was not related to a work dispute, finding that the employees' concerns about their working conditions and the enterprise agreement negotiations constituted a genuine dispute. Consequently, the union's application for a declaration that the proposed action would be protected was successful, and an order was made preventing Orica from taking adverse action against employees participating in the proposed action.

This decision reinforces the importance of unions following the correct procedures when organising industrial action and highlights the scope of protected action under the Fair Work Act. It provides clarity for unions and employers regarding the conditions under which industrial action may be organised and the protections available to employees participating in such action.

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