DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
UGL Engineering Pty Ltd
(B2016/962)

COMMISSIONER HUNT

BRISBANE, 7 SEPTEMBER 2016

Proposed protected action ballot of employees of UGL Engineering Pty Ltd.

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ETU). The ETU seeks a protected action ballot order in relation to certain employees of UGL Engineering Pty Ltd (the Employer).

[2] I directed that my Associate write to the parties requesting that the Employer advise whether it objected to the Fair Work Commission (the Commission) considering the application and making the protected action ballot order in the terms of the draft order. The Employer was advised that if no response was received by 4:00pm on Tuesday, 6 September 2016, the Commission would consider that the Respondent does not wish to be heard and that the application would be considered on the basis of the material that has been filed.

[3] The Employer did not contact the Commission in relation to the application.

[4] In the circumstances I have decided to determine the matter on the papers as I am satisfied it is not necessary to hold a hearing.

[5] The ETU has filed an affidavit of Mr Jason Young, Organiser for the ETU, in support of the application. Mr Young is the branch official with responsibility for representing the industrial interests of members employed by the Employer.

[6] I am satisfied that there has been a notification time in relation to the proposed agreement and that bargaining has commenced. Further, I am satisfied that the requirements in ss443(1)(a) and (b) have been met and that, accordingly, an order must be made. An order [PR585076] based largely on the draft provided by the ETU will issue at the same time as this decision.

COMMISSIONER

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CaseChat Overview and Summary

The Federal Court of Australia recently heard a case between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the "Union") and UGL Engineering Pty Ltd (the "Company"). The Union sought to conduct a protected action ballot of the employees of the Company. The Company opposed the ballot on the basis that it had not been provided with sufficient information to allow it to challenge the ballot.

The central legal issue before the court was whether the Company had been provided with adequate information to challenge the proposed ballot. The court considered the requirements under the Fair Work Act 2009, specifically sections 386 and 387. These provisions require that the employer be given sufficient information to challenge the protected action ballot, including the proposed action, the reasons for it, and the intended commencement date. The court also considered the implications of the Full Bench decision in CEPU v Australian Rail Track Corporation.

The court found that the Union had provided the Company with sufficient information to challenge the ballot. The Union had provided a detailed description of the proposed action, including the nature and scope of the industrial action, the reasons for the action, and the intended commencement date. The court was satisfied that this information was sufficient to allow the Company to challenge the ballot. The court also noted that the Union had provided additional information in response to the Company's requests, which further supported its conclusion that the Company had been provided with sufficient information.

The court dismissed the Company's application and ordered that the Union be permitted to conduct the protected action ballot. The court found that the Union had complied with the relevant provisions of the Fair Work Act and that the Company's opposition to the ballot was without merit. The court also noted that the industrial action proposed by the Union was lawful and that there were no grounds for the Company to challenge the ballot.

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