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
(B2019/780)

DEPUTY PRESIDENT DEAN

SYDNEY, 20 SEPTEMBER 2019

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

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

[2] On 19 September 2019, the Fair Work 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 statutory declaration of Benjamin Lister of the CEPU declared on 2 September 2019, 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 PR712601.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, which sought to conduct a ballot of employees of Prysmian Australia Pty Ltd regarding potential protected action. The dispute was heard in the Fair Work Commission, where the union argued that the proposed ballot was necessary to ascertain the employees' intentions concerning industrial action. Prysmian Australia Pty Ltd opposed the ballot, claiming it would unduly disrupt their operations.

The central legal issue for the court was whether the union's proposed ballot of employees constituted protected action under the Fair Work Act 2009. The court had to consider whether the ballot met the criteria for protected action, including whether the employees involved were eligible to participate in the ballot and whether the action was in relation to a workplace matter. Additionally, the court needed to assess the potential impact of the ballot on Prysmian Australia Pty Ltd's operations.

The Fair Work Commission determined that the proposed ballot by the union constituted protected action under the Fair Work Act 2009. The court found that the employees were eligible to participate in the ballot and that the action related to a workplace matter, satisfying the criteria for protected action. The court also considered the potential disruption to Prysmian Australia Pty Ltd's operations but concluded that the union's right to conduct the ballot outweighed the potential disruption. The court's reasoning was based on the importance of allowing employees to express their intentions regarding industrial action and the legislative framework that supports such processes.

As a result, the Fair Work Commission upheld the union's right to conduct the ballot of employees. The court did not impose any restrictions on the timing or manner of the ballot, allowing the union to proceed with the proposed action. This decision reinforced the importance of protected action in the context of workplace relations and the role of the Fair Work Commission in balancing the rights of employees and employers.

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