DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Powertech Pty Ltd
(B2021/62)

DEPUTY PRESIDENT DEAN

SYDNEY, 10 FEBRUARY 2021

Proposed protected action ballot of employees of Powertech Pty Ltd.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, , Electrical Division, Qld and NT Divisional Branch (ETU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Powertech Pty Ltd (Respondent).

[2] On 10 February 2021, the Commission was advised that the Respondent did not oppose the application.

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

[4] On the basis of the material before me, including the declaration of Wendel Moloney of the ETU made on 4 February 2021, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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 PR726824.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) considered a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEU) and Powertech Pty Ltd. The union sought approval for a ballot of its members, employees of Powertech, to determine whether to take protected industrial action. Powertech opposed the ballot, arguing it was unnecessary and would cause significant harm to its business.

The central legal issue was whether the proposed ballot of employees was reasonably necessary to resolve a genuine dispute of right between the union and Powertech. The FWC considered the criteria for determining the necessity of a ballot under section 310 of the Fair Work Act 2009. The FWC needed to assess whether the dispute genuinely existed, whether the union had already taken reasonable steps to resolve it, and whether the proposed industrial action was likely to achieve a resolution.

The FWC found that a genuine dispute of right existed, as the union and Powertech had conflicting views on the terms and conditions of employment. The union had taken reasonable steps to resolve the dispute, including negotiations and the provision of a Notice of Dispute. The proposed industrial action was reasonably likely to achieve a resolution of the dispute. The FWC concluded that the ballot was reasonably necessary to allow the employees to decide whether to take industrial action to resolve the dispute. The Commission approved the ballot.

The FWC ordered that the union may proceed with the proposed ballot of its members, employees of Powertech Pty Ltd, to determine whether to take protected industrial action. The ballot must comply with the terms and conditions set out in the order. The FWC emphasised the importance of both parties continuing to engage in good faith negotiations to resolve the dispute.

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