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

[2023] FWC 847

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

(B2023/313)

VICE PRESIDENT CATANZARITI

SYDNEY, 6 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 5 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 30 March 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 PR760957.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission received an application from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, seeking an order for a protected action ballot to be conducted among certain employees of UGL Operations and Maintenance (Services) Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, and the respondent, UGL Operations and Maintenance (Services) Pty Ltd, did not oppose the application. Consequently, the matter was determined on the basis of the written submissions and evidence provided, without the need for a formal hearing.

The central legal issue before the court was whether the union had satisfied the statutory requirements to conduct a ballot for protected industrial action, as outlined in section 443(1) of the Fair Work Act 2009. This involved verifying whether the union had genuinely engaged in good faith bargaining with the employer and if a notification period had been provided as mandated by the Act. The union had submitted a statutory declaration from Shawn Terence Higgins, affirming that they had been genuinely attempting to reach an agreement with the employer and that the requisite notification time had been observed.

In examining the evidence, the Vice President found that the union had indeed complied with the statutory prerequisites for a protected action ballot. The declaration from Shawn Terence Higgins provided sufficient evidence of the union's genuine efforts in bargaining and adherence to the notification period. As such, the Vice President was satisfied that the application met the necessary criteria for the issuance of a ballot order. The court issued an order separately, as noted in PR760957.

Additional orders and further legal implications are delineated in the separately issued order PR760957. This decision underscores the importance of the union's compliance with statutory requirements and the process for obtaining a ballot order under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established