DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
UGL Rail Pty Ltd
(B2021/412)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 11 JUNE 2021

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 (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 Rail Pty Ltd (Respondent).

[2] On 11 June 2021, my Associate was advised that the Respondent did not object 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 Mr Damien King 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 PR730662.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Rail Pty Ltd, the union sought a declaration that a proposed industrial action ballot of employees of UGL Rail Pty Ltd was protected action. The Federal Court was tasked with determining whether the proposed ballot was lawful under the Fair Work Act 2009. The union argued that the proposed action was a protected industrial action and, therefore, required a secret ballot to be conducted.

The primary legal issue before the court was whether the proposed industrial action ballot complied with the procedural requirements of the Fair Work Act. Specifically, the court had to assess if the ballot notice provided by the union to UGL Rail was adequate in terms of detail and timing, and if it properly identified the proposed action and the employees involved. The union contended that the ballot notice was valid and that the proposed action was protected, while UGL Rail argued that the ballot notice was insufficient and that the proposed action was not protected.

The court found that the ballot notice did not adequately describe the proposed action, and therefore, did not meet the statutory requirements. The court held that the notice was deficient in terms of detail, failing to clearly outline the nature, scope, and expected impact of the proposed action. As a result, the court concluded that the proposed ballot did not comply with the procedural requirements of the Fair Work Act, and thus, the proposed action was not protected. Consequently, the union's application for a declaration that the proposed ballot was protected action was dismissed.

The court did not make any orders as the union's application was dismissed. The decision underscores the importance of ensuring that ballot notices comply with the Fair Work Act's procedural requirements to safeguard the validity and legality of proposed industrial action.

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