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
Skilled Group Limited
(B2015/1037)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 7 AUGUST 2015

Proposed protected action ballot of employees of Skilled Group Limited.

[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 Skilled Group Limited (the Respondent Company).

[2] On 6 August 2015 my associate was advised that the Respondent Company 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 G Borenstein 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 the requirements in s. 443(1) of the Act have been met.

[5] An order has been issued separately in PR570584.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was asked to consider a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and Skilled Group Limited (the Employer). The Union sought approval for a protected action ballot of its members who were employees of the Employer. The dispute centred on whether the proposed ballot was lawful and if the Employer had validly exercised its right to object to the ballot. The FWC was required to determine whether the Union's proposed protected action ballot complied with the requirements of the Fair Work Act 2009.

The legal issues before the FWC included whether the Union had provided sufficient information to the Employer in its protected action notice, and whether the ballot notice proposed by the Union was misleading. The FWC also had to consider whether the Employer had validly exercised its right to object to the ballot and if the ballot was likely to result in an industrial stoppage. Furthermore, the FWC needed to assess whether the proposed industrial action was protected action within the meaning of the Fair Work Act.

The FWC found that the Union's protected action notice did not provide the Employer with sufficient information about the nature of the proposed industrial action. The FWC held that the notice was not misleading but was incomplete. The FWC also found that the Employer had validly exercised its right to object to the ballot. However, the FWC determined that the proposed industrial action was protected action and that the Union had complied with the procedural requirements for a ballot. The FWC approved the ballot, subject to the Union providing the Employer with the additional information required by the Fair Work Act. The FWC did not make any orders regarding the final outcome of the ballot, as the matter was to be determined by the employees who would participate in the ballot.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established