Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Operations and Maintenance (Services) Pty Ltd

[2023] FWC 922

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 Operations and Maintenance (Services) Pty Ltd

(B2023/349)

VICE PRESIDENT CATANZARITI

SYDNEY, 19 APRIL 2023

Proposed protected action ballot of employees of UGL Operations and Maintenance (Services) Pty Ltd

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 (Cth) (Act) for a protected action ballot order in relation to certain employees of UGL Operations and Maintenance (Services) Pty Ltd (Respondent).

On 17 April 2023, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

On the basis of the material before me, including the statutory declaration of Shawn Terence Higgins of the Applicant declared on 17 April 2023, 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.

An Order has been separately issued in PR761205.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, seeking a protected action ballot order concerning specific employees of UGL Operations and Maintenance (Services) Pty Ltd. This application was made under section 437 of the Fair Work Act 2009. The union, represented by Shawn Terence Higgins, sought to hold a ballot for protected action due to ongoing disputes with the respondent company over a proposed agreement. The union claimed that it had been genuinely attempting to reach an agreement with the company, but without success, necessitating the need for a ballot. UGL Operations and Maintenance (Services) Pty Ltd did not oppose the application, leading the Vice President to decide the matter based on the submitted documentation without the need for a hearing.

The primary legal issue before the Vice President was whether the union had met the statutory requirements to hold a protected action ballot. This involved assessing if there was a notification period concerning the proposed agreement and if the union had been genuinely attempting to reach an agreement with the respondent, as required by section 443(1) of the Fair Work Act 2009. The union's statutory declaration, which outlined its bargaining efforts and the absence of a successful agreement, was central to this determination. The Vice President needed to determine if the union's actions and the lack of an agreement met the legal criteria for holding a ballot for protected action.

The Vice President found that the union had fulfilled the requirements to hold a ballot for protected action. The statutory declaration provided by Shawn Terence Higgins, which detailed the union's efforts to reach an agreement with UGL Operations and Maintenance (Services) Pty Ltd and the absence of a successful outcome, was deemed sufficient. The Vice President was satisfied that a notification period had elapsed and that the union had genuinely attempted to negotiate. Consequently, the application for a protected action ballot was granted, and the union was authorised to proceed with the ballot. This decision was based on the evidence provided and the absence of opposition from the respondent company.

The Fair Work Commission issued an order permitting the union to conduct a ballot for protected action among the specified employees of UGL Operations and Maintenance (Services) Pty Ltd. This order was made under the authority of the Fair Work Act 2009, reflecting the Vice President's determination that the union had met the necessary legal criteria. The union could now proceed with the ballot, as authorised by the Fair Work Commission, to address the ongoing dispute and seek resolution through protected action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established