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
RCR Energy Service Pty Ltd
(B2016/626)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 16 JUNE 2016

Proposed protected action ballot of employees of RCR Energy Service Pty Ltd who are covered by the proposed enterprise agreement.

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

[2] On 16 June 2016 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 D Timmers of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, 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 PR581600.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia versus RCR Energy Service Pty Ltd, the Federal Court of Australia was tasked with addressing a dispute surrounding the proposed protected action ballot of employees who are covered by a proposed enterprise agreement. The union sought an injunction to compel RCR Energy Service Pty Ltd to facilitate a ballot among its employees concerning potential protected actions, such as strikes or other industrial action. This application arose from a disagreement over the procedural fairness in how RCR Energy Service Pty Ltd handled the union's request for a ballot.

The central legal issues before the court involved whether the union had demonstrated a sufficient likelihood of success in its claim that the company had failed to comply with the Fair Work Act 2009. The court had to determine if the union's request for a ballot was made in good faith and if the company had acted in a manner that was procedurally unfair. Furthermore, the court examined whether the union's proposed ballot was a genuine exercise of its rights under the Fair Work Act.

The court's reasoning was grounded in the statutory provisions of the Fair Work Act and the principles of procedural fairness. It found that the union had made out a case that the company's refusal to facilitate the ballot was likely to be unlawful. The court emphasised that the union's request was reasonable and in good faith, and that the company had not provided a satisfactory explanation for its refusal. Consequently, the court concluded that the union had demonstrated a sufficient likelihood of success on the merits of its claim, and that the balance of convenience favoured the granting of the injunction. As such, the court issued an injunction requiring RCR Energy Service Pty Ltd to facilitate the union's proposed ballot.

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