DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Thales Australia Limited T/A Thales Australia
(B2018/1171)

DEPUTY PRESIDENT MASSON

MELBOURNE, 12 DECEMBER 2018

Proposed protected action ballot of employees of Thales Australia 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 Thales Australia Limited (Respondent).

[2] On 12 December 2018, my Associate 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 statutory declaration of Mr J Page 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 PR703103.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and Thales Australia Limited, trading as Thales Australia. The Union sought approval for a proposed protected action ballot of employees of Thales Australia, to ascertain their willingness to take industrial action in support of their enterprise agreement negotiations. Thales Australia contested the ballot on the grounds that it was not a genuine attempt to resolve a workplace dispute and was instead an abuse of the protected action provisions. The matter was heard in the Commission's Melbourne office.

The central legal issue before the Commission was whether the Union's proposed ballot was a genuine attempt to resolve a workplace dispute within the meaning of section 312 of the Fair Work Act 2009. The Commission was required to consider whether the ballot was genuinely intended to facilitate a resolution of the dispute, and whether the Union had acted in good faith. Thales Australia argued that the ballot was not a genuine attempt to resolve the dispute, and that it constituted an abuse of the protected action process.

In delivering its decision, the Commission noted that the Union had acted in good faith and that the proposed ballot was a genuine attempt to resolve the dispute. The Union had a legitimate interest in ascertaining the views of its members regarding potential industrial action and the ballot was a necessary step in that process. The Commission found that the Union's proposed ballot was not an abuse of the protected action process, and that it was in the best interests of the parties to allow the ballot to proceed. The Commission approved the ballot, subject to certain conditions designed to ensure that it was conducted in a fair and orderly manner.

The Commission ordered that the proposed ballot of Thales Australia Limited employees be approved, subject to the conditions set out in the decision. The Union was required to provide Thales Australia with a copy of the ballot paper and any other materials to be used in the ballot, at least seven days before the ballot was conducted. The Union was also required to ensure that the ballot was conducted in a fair and orderly manner, and that the results of the ballot were not influenced by any improper conduct. The decision provides important guidance on the interpretation of the protected action provisions in the Fair Work Act, and the standards that must be met in order for a ballot to be approved by the Commission.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Thales Australia Limited T/A Thales Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established