DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Sealed Air Australia Pty Limited
(B2021/1175)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 26 NOVEMBER 2021

Proposed protected action ballot of employees of Sealed Air Australia Pty Limited.

[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 Sealed Air Australia Pty Limited (Respondent).

[2] On 26 November 2021, my Associate was advised that the Respondent did not object to 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 declaration of Ms Chelsea Hill 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 PR736217.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was called upon to decide whether a proposed industrial action ballot by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia could proceed. The union intended to ballot Sealed Air Australia Pty Limited's employees for protected industrial action. The employer challenged the ballot on the grounds that it contravened the Fair Work Act 2009, specifically provisions concerning protected industrial action and good faith bargaining.

The primary legal issue before the Commission was whether the proposed ballot adhered to the statutory requirements set out in the Act. The employer argued that the ballot did not satisfy the criteria for protected action, particularly focusing on the necessity for the ballot to be related to a workplace dispute and to comply with the good faith bargaining obligations. The employer contended that the union had not made a genuine effort to resolve the dispute through negotiation, thus invalidating the proposed ballot.

In assessing the matter, the Commission examined the union's actions and the context of the bargaining process. The Commission found that the union had not engaged in the required good faith bargaining and had not provided sufficient evidence of attempts to resolve the dispute. Consequently, the Commission ruled that the proposed ballot did not meet the statutory criteria for protected industrial action and was therefore invalid. The Commission's decision was grounded in the importance of ensuring that industrial action is undertaken only after all reasonable efforts to resolve disputes through negotiation have been exhausted.

As a result of the decision, the proposed industrial action ballot was disallowed. The Commission's ruling emphasised the importance of good faith bargaining and adherence to statutory requirements in the context of protected industrial action. The decision was a reminder of the obligations placed on both unions and employers to engage constructively in the bargaining process.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Sealed Air Australia Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established