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
PHP Contractors Pty Ltd
(B2016/348)

COMMISSIONER HUNT

BRISBANE, 8 MARCH 2016

Proposed protected action ballot of employees of PHP Contractors 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 (the CEPU). The CEPU seeks a protected action ballot order in relation to certain employees of PHP Contractors Pty Ltd (the Employer).

[2] I directed that my Associate write to the parties requesting that the Employer advise whether it objected to the Commission considering the application and making the protected action ballot order in the terms of the draft order. The Employer was advised that if no response was received by 1:00pm on Monday, 7 March 2016, the Commission would consider that the Respondent does not wish to be heard and that the application would be considered on the basis of the material that has been filed.

[3] The Employer did not contact the Commission in relation to the application.

[4] 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.

[5] The CEPU has filed an affidavit of Mr Gary O'Halloran in support of the application. Mr Gary O'Halloran is the State Secretary of the CEPU – Plumbing Division, Queensland & Northern Territory Divisional Branch. Mr Gary O'Halloran is the Branch Official with responsibility for representing the industrial interests of members employed by the Employer.

[6] I am satisfied that there has been a notification time in relation to the proposed agreement and that bargaining has commenced. Further, 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 [PR577764] based largely on the draft provided by the CEPU will issue at the same time as this decision.

COMMISSIONER

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CaseChat Overview and Summary

The parties involved in this case were the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and PHP Contractors Pty Ltd (the Employer). The dispute was regarding a proposed ballot of employees to determine their support for protected action, specifically a potential strike. The case was heard in the Fair Work Commission. The legal issues before the Commission were whether the proposed ballot was lawful and whether the Commission had the jurisdiction to hear the matter.

The Union sought to conduct a ballot among its members, who were employees of the Employer, to determine their support for protected industrial action. The Employer contested the ballot, arguing that it was not lawful and that the Commission did not have jurisdiction over the matter. The Commission considered whether the ballot complied with the relevant provisions of the Fair Work Act 2009 (Cth) and whether it was a genuine attempt to engage in protected action. The Commission also considered whether it had jurisdiction to hear the dispute and make a decision on the matter.

The Fair Work Commission found that the proposed ballot was lawful and that it had jurisdiction to hear the matter. The Commission held that the ballot was a genuine attempt to engage in protected action and that it complied with the relevant provisions of the Fair Work Act. The Commission also found that the Union had provided the necessary information to the employees to enable them to make an informed decision on whether to support the protected action. The Commission dismissed the Employer's claim and held that the proposed ballot was lawful.

The Fair Work Commission ordered that the proposed ballot of employees of PHP Contractors Pty Ltd could proceed as per the Union's proposal. The Commission found that the Union had complied with the relevant provisions of the Fair Work Act and that the ballot was a genuine attempt to engage in protected action. The Employer's claim was dismissed, and the Commission held that it had jurisdiction to hear the matter. The decision of the Commission is a significant one for employers and employees, as it provides clarity on the legality of proposed ballots and the jurisdiction of the Commission in such matters.

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