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

[2018] FWC 7442

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

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

Telstra Corporation Limited

(B2018/1126)

Deputy President Hamilton

MELBOURNE, 6 DECEMBER 2018

Proposed protected action ballot of employees of Telstra Corporation Limited.

This decision concerns an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Telstra Corporation Limited (respondent).

On 3 December 2018, the respondent advised the Fair Work Commission (Commission) that it objected to the application.

The matter was listed to be heard before me on 6 December 2018.

On 5 December 2018, the applicant advised the Commission that the parties were able to reach agreement on the application. This was confirmed by the respondent.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

I have considered the application and the statutory declaration of Mr Shane Murphy, the Divisional President of the CEPU Communications Division, setting out the steps taken by the applicant to try to reach agreement with the respondent.

I am satisfied that there is a notification time in relation to the proposed agreement, that the applicant has been, and is, genuinely trying to reach agreement with the respondent, and that the other requirements for the making of a protected action ballot order have been met.

Accordingly, the Commission is required under s.443 of the Act to make a protected action ballot order.

An order has been separately issued in PR702940.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought a declaration that a proposed ballot of employees of Telstra Corporation Limited, concerning protected action, was lawful. The Federal Court was asked to consider whether the union's proposed ballot was consistent with the Fair Work Act 2009. The union argued that the proposed ballot, which sought to authorise industrial action, complied with the requirements of the Act, including the necessary 48-hour notice and the specific details of the proposed action.

The primary legal issue was whether the union's proposed ballot met the statutory requirements under the Fair Work Act for a protected action ballot. This involved interpreting the provisions of the Act, particularly those concerning notice periods and the specifics of the proposed industrial action. The court had to determine if the union's ballot complied with the legal framework governing protected industrial action, and whether there were any defects in the notice or the details of the proposed action that rendered the ballot invalid.

The court held that the union's proposed ballot did not comply with the statutory requirements of the Fair Work Act. The notice provided was insufficient as it did not detail the specific industrial action that employees were being asked to approve, which was necessary under the Act. Additionally, the ballot notice did not specify the dates on which the employees would be asked to take the protected action, which was also a requirement. As a result, the court found that the union's proposed ballot was invalid and could not proceed.

The court's decision meant that the union's proposed ballot of Telstra employees was unlawful, and as a consequence, it could not be conducted. This outcome highlights the importance of strict adherence to the statutory requirements when organising protected action ballots under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established