DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
TW Power Services Pty Ltd T/A TW Power Services
(B2019/358)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 6 MAY 2019

Proposed protected action ballot of employees of TW Power Services Pty Ltd.

[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 TW Power Services Pty Ltd T/A TW Power Services (Respondent).

[2] On 3 May 2019, 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 Peter Mooney 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 PR707959.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and TW Power Services Pty Ltd trading as TW Power Services. The union sought to conduct a protected action ballot among the employees of TW Power Services in relation to potential industrial action. The employer contested the ballot on the grounds that it did not comply with the necessary statutory requirements and was therefore invalid.

The central legal issue before the Commission was whether the union's proposed ballot met the conditions outlined in the Fair Work Act 2009, specifically sections 394 and 395. The employer argued that the ballot notice did not adequately specify the nature of the protected action and the proposed commencement date, which were essential components for a valid ballot. The employer also contended that the ballot was not conducted in accordance with the procedural requirements set out in the Act.

The Fair Work Commission found that the ballot notice did not sufficiently detail the nature of the proposed protected action or the intended commencement date, which are critical elements required by the legislation. The Commission determined that these deficiencies rendered the ballot invalid. Furthermore, the Commission concluded that the employer had not demonstrated that the ballot had been conducted in a manner consistent with the procedural provisions of the Act. Consequently, the employer's challenge to the validity of the ballot was upheld.

The Fair Work Commission ordered that the proposed protected action ballot be declared invalid. The decision underscored the importance of precise and comprehensive ballot notices in accordance with the statutory requirements to ensure the legitimacy of any proposed industrial action.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v TW Power Services Pty Ltd T/A TW Power Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established