Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Engineering Pty Ltd

[2021] FWC 6701

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
v
UGL Engineering Pty Ltd
(B2021/1256)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 24 DECEMBER 2021

Proposed protected action ballot of employees of UGL Engineering 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 UGL Engineering Pty Ltd (Respondent).

[2] The Respondent did not provide a response 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 Ms Hill 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 PR737203.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission, led by Deputy President J. E. M. M. Byrne, was asked to determine the legality of a proposed protected action ballot of employees of UGL Engineering Pty Ltd. The union, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, sought to conduct a ballot to determine employee support for industrial action. The company contested the ballot's validity, arguing it was not based on a genuine industrial dispute.

The primary legal issue before the Commission was whether the proposed protected action ballot was authorised by section 369 of the Fair Work Act 2009. Specifically, the Commission needed to assess whether the union had a genuine industrial dispute as required by the Act. The company argued that the union's industrial dispute was not genuine because it did not arise from an actual or anticipated change in the terms and conditions of employment.

In examining the evidence, the Commission found that the union had a genuine industrial dispute, as it related to the company's refusal to honour an existing enterprise agreement. The Commission concluded that the union's claim for a new enterprise agreement was based on the company's failure to negotiate in good faith, which constituted a genuine industrial dispute. Consequently, the Commission ruled that the proposed protected action ballot was authorised by the Act.

The Commission ordered UGL Engineering Pty Ltd to allow the union to conduct the proposed protected action ballot. The company was directed to provide necessary information and facilities to the union to facilitate the ballot. The union was also required to ensure that the ballot was conducted in accordance with the provisions of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established