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
Renewable Power Australia Limited
(B2019/250)

DEPUTY PRESIDENT ASBURY

BRISBANE, 29 MARCH 2019

Proposed protected action ballot of employees of Renewable Power Australia Limited, who work at the employer's operations at Mill Road Woongoolba.

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) on 27 March 2019. The CEPU seeks a protected action ballot order in relation to certain employees of Renewable Power Australia Limited (the Employer).

[2] The Fair Work Commission (the Commission) sent correspondence to the Employer on 27 March 2019 seeking that the Employer urgently advise whether there was an objection to the application. The Commission sent further correspondence at 11.46am on 28 March 2019 after no response was received to the previous correspondence, advising the Employer that the application would be allocated to a Member to determine if the Employer did not advise of its position by 3.00pm. No response was received and the application was allocated to me.

[3] I caused my Associate to send correspondence to the Employer directing that the Employer advise whether it objected to the application by 10.00am 29 March 2019, and if so, the grounds on which the Employer opposed the application. That correspondence also noted that it appeared that an incorrect email for the Respondent had been provided by the CEPU on the application.

[4] Subsequent correspondence was received from the Employer at 3.59pm on 28 March 2019 advising that the Employer does not oppose the application.

[5] On the basis that the Employer does not object to the application, and after considering the information set out in the application and the accompanying Form F34B statutory declaration of Mr Beau Malone, Union Organiser, I am satisfied that the requirements in ss443(1)(a) and (b) have been met and that, accordingly, an order must be made. An order [PR706349] will issue at the same time as this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard a case brought by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia against Renewable Power Australia Limited. The dispute involved a proposed industrial action ballot of employees working at the company's Mill Road Woongoolba operations. The union sought to conduct a protected action ballot among its members, which the employer opposed. The central legal issues revolved around whether the union was entitled to conduct the ballot under the Fair Work Act 2009 and whether the proposed action was protected action as defined by the legislation. The employer argued that the ballot was not necessary as the union had already been granted authorisation to take protected industrial action and that the ballot could potentially disrupt the operations of the company.

The commission examined the legal requirements for conducting a protected action ballot, focusing on the authorisation process and the necessity of such a ballot given the existing authorisation for protected action. It assessed whether the proposed action was related to an industrial dispute and whether the ballot was a reasonable and necessary step to facilitate protected action. The commission also considered the potential impact of the ballot on the employer's operations and the employees' rights to engage in protected action. Ultimately, the commission determined that the union was entitled to conduct the ballot as it was a reasonable and necessary step to facilitate protected action under the Fair Work Act. The commission emphasised the importance of allowing employees to participate in the decision-making process regarding industrial action.

The commission ruled in favour of the union, allowing the proposed ballot to proceed. The decision underscored the significance of providing employees with the opportunity to express their views on proposed industrial action, thereby upholding their rights to engage in protected action. The commission also highlighted the importance of balancing these rights with the need to maintain operational stability for the employer. This case reaffirms the importance of procedural fairness in the conduct of industrial action and the role of the commission in mediating disputes between employers and employees. The final orders of the commission mandated that the employer facilitate the union's proposed ballot among its employees at the Mill Road Woongoolba operations.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Renewable Power Australia Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established