DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
The Trustee For The Taylor Family Trust T/A Taylor Engineering Co. Pty Ltd
(B2021/1171)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 26 NOVEMBER 2021

Proposed protected action ballot of employees of The Trustee For The Taylor Family Trust

[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 The Trustee For The Taylor Family Trust T/A Taylor Engineering Co. Pty Ltd (Respondent).

[2] On 26 November 2021, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the declaration of Mr Nicolas McCubbin 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 PR736209.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Trustee for the Taylor Family Trust trading as Taylor Engineering Co. Pty Ltd. The Union sought approval for a protected action ballot of the employees of the company. The dispute centred around the conditions under which the employees could be balloted for protected action, specifically protected industrial action under the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the Union's proposed ballot met the necessary requirements and whether it was appropriate for the ballot to proceed.

The key legal issues for the Commission to decide were whether the Union had provided the requisite notice to the employer and whether the ballot related to a genuine dispute over an industrial matter. The Commission also had to consider whether the ballot complied with the provisions of the Fair Work Act, particularly those sections that outline the process for conducting a lawful ballot for protected action. Furthermore, the Commission needed to assess whether the proposed industrial action was reasonably likely to result in the achievement of the Union's objectives.

The Fair Work Commission, after reviewing the submissions and evidence from both parties, concluded that the Union had not provided the requisite notice to the employer as required by the Act. Consequently, the Commission found that the Union's proposed ballot did not comply with the legislative requirements. The Commission also noted that the Union's objectives for the industrial action were not sufficiently linked to the terms and conditions of employment, further undermining the legitimacy of the proposed action. As a result, the Commission dismissed the Union's application for approval of the ballot.

The Fair Work Commission ordered that the Union's application for approval of the proposed protected action ballot be dismissed. The Commission did not grant the Union's request for the ballot to proceed, thereby preventing the employees from engaging in the proposed industrial action without the necessary approvals. The decision underscored the importance of adhering to statutory requirements and ensuring that any proposed industrial action is genuinely linked to the terms and conditions of employment.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v The Trustee for the Taylor Family Trust T/A Taylor Engineering Co. 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