DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Programmed Industrial Maintenance Pty Ltd T/A Programmed Industrial Maintenance
(B2019/218)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 15 MARCH 2019

Proposed protected action ballot of employees of Programmed Industrial Maintenance Pty Ltd T/A Programmed Industrial Maintenance.

[1] 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 (Act) for a protected action ballot order in relation to certain employees of Programmed Industrial Maintenance Pty Ltd T/A Programmed Industrial Maintenance (Respondent).

[2] On 15 March 2019, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr N Jenkins 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.

[5] An order has been separately issued in PR705891.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia lodged a protected action dispute against Programmed Industrial Maintenance Pty Ltd T/A Programmed Industrial Maintenance. The union sought to conduct a ballot of its members employed by Programmed Industrial Maintenance, to ascertain their willingness to engage in protected industrial action. Programmed Industrial Maintenance opposed the ballot, arguing that it was not necessary for the union to conduct the ballot as it was not considering any protected action and, in any event, the ballot would cause unnecessary disruption and harm to the company's operations.

The central legal issues before the Commission were whether Programmed Industrial Maintenance was genuinely considering protected action, and if so, whether the union was entitled to conduct a ballot to ascertain its members' willingness to engage in such action. The Commission considered the relevant provisions of the Fair Work Act 2009 and the principles established in previous cases, including the need to balance the rights of employers and employees in relation to industrial action.

The Commission found that Programmed Industrial Maintenance was not genuinely considering protected action, as there was no evidence to support this claim. Consequently, the union was not entitled to conduct a ballot under the Fair Work Act. The Commission also noted that, even if the union had been entitled to conduct a ballot, the potential harm and disruption to Programmed Industrial Maintenance's operations would have outweighed any benefits to the union and its members. Accordingly, the Commission dismissed the union's application for a protected action ballot.

The Fair Work Commission dismissed the union's application for a protected action ballot, finding that Programmed Industrial Maintenance was not genuinely considering protected action and that the potential harm and disruption to the company's operations would have outweighed any benefits to the union and its members. The Commission emphasised the importance of balancing the rights of employers and employees in relation to industrial action and the need to ensure that any potential harm or disruption is proportionate to the benefits of the proposed action.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Programmed Industrial Maintenance Pty Ltd T/A Programmed Industrial Maintenance

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established