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

[2023] FWC 427

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

Prysmian Australia Pty Ltd

(B2023/128)

VICE PRESIDENT CATANZARITI

SYDNEY, 21 FEBRUARY 2023

Proposed protected action ballot of employees of Prysmian 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 Prysmian Australia Pty Ltd (Respondent).

On 20 February 2023, 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 Tara Melissa Koot of the Applicant declared on 17 February 2023, 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 PR750954.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has recently addressed an application under section 437 of the Fair Work Act 2009 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia against Prysmian Australia Pty Ltd. The union sought a protected action ballot order for certain employees, indicating an intent to take protected industrial action. The dispute arose from the union's attempt to reach a negotiated agreement with the respondent company but failing to do so. The company did not oppose the union's application, allowing the matter to be resolved without a formal hearing. The Vice President of the Fair Work Commission, Catanzariti, examined the evidence provided, including a statutory declaration by Tara Melissa Koot, confirming the union's efforts in bargaining and its genuine attempt to reach an agreement with the company.

The primary legal issues the court needed to decide involved whether the union had genuinely attempted to negotiate with the company and if the statutory requirements for a protected action ballot had been met. The union's application was based on the assertion that it had been trying to reach an agreement but had been unsuccessful, necessitating the proposed industrial action. The court had to determine if these conditions justified granting the ballot order as per the Fair Work Act. The union's efforts were scrutinized to ensure they complied with the Act's requirements, particularly the notification time and the steps taken in bargaining.

In reaching its decision, the Fair Work Commission assessed the evidence presented, including the union's declaration of its bargaining efforts and the lack of opposition from the company. The Vice President was satisfied that the union had genuinely tried to negotiate with the company and that all statutory requirements were met. This included the notification period stipulated in section 443(1) of the Act. Based on this evidence, the Commission decided to grant the union's application for a protected action ballot order. Consequently, an order was issued in accordance with the application. This decision allows the union to proceed with the ballot to determine if the employees support the proposed industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established