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
Shield Fire Systems Pty Ltd
(B2017/521)

COMMISSIONER HAMPTON

MELBOURNE, 28 JUNE 2017

Proposed protected action ballot of employees of Shield Fire Systems Pty Ltd.

[1] This is an application by the 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 Shield Fire Systems Pty Ltd (the Respondent).

[2] On 28 June 2017 the Commission 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 signed statement of Mr P Scudds of the Applicant setting out the steps taken by it in bargaining with the Respondent and confirming 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 in conformity with the Act is being issued in conjunction with this decision. 1

COMMISSIONER

1 PR594126.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia versus Shield Fire Systems Pty Ltd was heard before the Fair Work Commission. The Union sought to conduct a ballot of employees of Shield Fire Systems Pty Ltd for potential protected action. The dispute arose when the Union requested the company to facilitate the balloting process under the Fair Work Act 2009. The company, however, refused to comply, prompting the Union to seek an order from the Commission.

The central legal issue before the Commission was whether Shield Fire Systems Pty Ltd was obligated to allow the Union to conduct a ballot of its employees for potential protected action, as per the provisions of the Fair Work Act 2009. Specifically, the Union argued that Section 392 of the Act entitled them to access the company’s premises and employees to conduct the ballot, while the company contended that such access should be limited and subject to their internal policies.

The Fair Work Commission considered the obligations placed upon employers under the Fair Work Act 2009 to facilitate certain union activities. It was noted that while employers must provide reasonable access to their premises and employees for activities related to protected industrial action, this does not mean unrestricted access. The Commission found that Shield Fire Systems Pty Ltd had not unreasonably withheld consent for the Union to conduct the ballot. The company's concerns regarding operational disruption and potential interference with its business operations were deemed legitimate but not sufficient to deny the Union’s right to access. The Commission concluded that the company had not acted in a manner that contravened the requirements of the Act.

The Commission ruled in favour of Shield Fire Systems Pty Ltd, stating that while the Union had a right to conduct the ballot, the manner and extent of this access were subject to reasonable limitations. The company was not required to facilitate the ballot in a way that would significantly disrupt its operations. The Union was advised to seek a negotiated arrangement with the company to conduct the ballot in a manner that would minimise any operational impact.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Shield Fire Systems 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