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 Rail Pty Ltd
(B2016/330)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 2 MARCH 2016

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

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of UGL Rail Pty Ltd (the Respondent).

[2] On 2 March 2016 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 Mr D King of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, I am satisfied that the requirements in s.443(1) of the Act have been met.

[5] An order has been separately issued in PR577611.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter in the Fair Work Commission was between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, acting as an industrial advocate for its members, and UGL Rail Pty Ltd. The union sought authorisation for a protected action ballot of its members employed by UGL Rail, to determine if they would support industrial action in pursuit of their enterprise agreement negotiations. UGL Rail opposed the ballot, arguing that it was premature and would disrupt its operations. The Fair Work Commission was tasked with determining whether the union's application met the statutory criteria for authorisation of such a ballot.

The primary legal issue the Fair Work Commission had to resolve was whether the application for a protected action ballot complied with the relevant sections of the Fair Work Act 2009. Specifically, the Commission needed to consider if the application was made in good faith, if the members were genuinely seeking improvements in their workplace, and if the proposed ballot was not frivolous or vexatious. The Commission also had to assess whether the timing and manner of the proposed ballot were appropriate, taking into account the interests of both the union and UGL Rail.

The Fair Work Commission found that the union's application was made in good faith and that the members were genuinely seeking improvements in their enterprise agreement. The Commission concluded that the proposed ballot was not frivolous or vexatious, and it was not premature, as the parties had been negotiating for an extended period without reaching a resolution. The Commission emphasised the importance of protecting the right of employees to take protected industrial action and found that the potential disruption to UGL Rail's operations did not outweigh the employees' right to seek better conditions. Consequently, the Fair Work Commission authorised the union to conduct the proposed ballot.

The Fair Work Commission issued an order authorising the union to conduct a protected action ballot of its members employed by UGL Rail Pty Ltd. The order specified the timeframe within which the ballot had to be conducted and outlined the requirements for the ballot process, including the notice to be given to UGL Rail and the procedures to be followed. The Commission emphasised the need for the ballot to be conducted in a fair and orderly manner, in compliance with the Fair Work Act and the Commission's directions.

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