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
Stowe Australia Pty Limited
(B2015/612)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 16 JULY 2015

Proposed protected action ballot of employees of Stowe Australia Pty Limited.

[1] On 17 June 2015 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made an application for a protected action ballot order pursuant to section 437 of the Fair Work Act 2009 (the Act). The CEPU sought to ballot the employees of Stowe Australia Pty Ltd (Stowe) who are CEPU members and who would be covered by the proposed enterprise agreement.

[2] I heard this application on 22 and 23 June 2015 and 6 July 2015.

[3] The relevant statutory provision is set out below:

“437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or
(b) a multi-enterprise agreement.

Matters to be specified in application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.”

[4] I am satisfied that:

● The CEPU is a bargaining representative of employees who will be covered by the proposed agreement.

● The proposed agreement is not a greenfields agreement or a multi-enterprise agreement.

● The application specifies the group of employees to be balloted, the questions to be put to employees and the nature of the proposed industrial action.

● The application specifies that the Australian Electoral Commission will be the protected action ballot agent.

[5] During the course of the hearings some contentious issues were resolved by negotiation. At the conclusion of the hearing it was no longer in issue that the CEPU had been and still was genuinely trying to reach an agreement. The remaining issues for determination by me are whether or not a postal or attendance ballot should be held and the form of the questions to be put to the employees.

[6] I have considered the questions sought. The orders are straightforward. I am satisfied that questions proposed set out the alternative industrial action proposed by the CEPU clearly and are appropriate.

[7] The CEPU seeks that the Australian Electoral Office is the protected action ballot agent. I am satisfied that that is appropriate.

[8] An Order will issue.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was asked to determine whether a proposed protected action ballot of employees of Stowe Australia Pty Limited was protected action as defined by the Fair Work Act 2009. The employees, represented by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, sought to conduct a protected action ballot in relation to various matters, including pay, conditions, and the proposed closure of the company's manufacturing plant. Stowe Australia Pty Limited opposed the ballot, arguing that the matters raised in the ballot were not genuine, as the company had already closed its manufacturing plant and had no intention of reopening it.

The key legal issues for the FWC to decide were whether the proposed ballot constituted protected action and, if so, whether any of the matters raised in the ballot were genuinely in dispute. The FWC considered the definitions of "protected action" and "genuine dispute" under the Fair Work Act, as well as relevant case law and legislative history. The FWC found that the proposed ballot constituted protected action, as it involved a proposal to take action in relation to the employees' working arrangements. The FWC also found that the matters raised in the ballot were genuinely in dispute, as there was a genuine difference of opinion between the union and the employer over the terms and conditions of employment, as well as the future operation of the manufacturing plant.

In reaching its decision, the FWC considered the evidence and arguments presented by both parties, as well as the relevant legal framework. The FWC found that the union had demonstrated that there was a genuine difference of opinion between the union and the employer over the matters raised in the ballot, and that the proposed action was a reasonable means of resolving that dispute. The FWC also found that the employer had not demonstrated that the proposed ballot was not genuinely in dispute or that it would cause significant economic harm to the employer. The FWC therefore authorised the proposed protected action ballot, subject to certain conditions and requirements.

The FWC ordered that the proposed protected action ballot of employees of Stowe Australia Pty Limited be authorised, subject to certain conditions and requirements. These included the requirement that the union provide the employer with a copy of the ballot paper and a list of the employees who had voted in the ballot, and that the employer provide the union with certain information about the employees who had voted in the ballot. The FWC also ordered that the ballot be conducted in a manner that complied with the relevant provisions of the Fair Work Act and any applicable industrial instruments.

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