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 Services Pty Ltd
(B2020/506)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 3 SEPTEMBER 2020

Proposed protected action ballot of employees of UGL Rail Services 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 Services Pty Ltd (Respondent).

[2] On 3 September 2020, 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 Ms C Hill 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 PR722504.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) sought an order to compel UGL Rail Services Pty Ltd (UGL) to facilitate a proposed protected action ballot of its employees. The Union argued that UGL had refused to provide the necessary information to its employees to allow them to vote on the proposed industrial action. The dispute was brought before the Fair Work Commission (the Commission) under the Fair Work Act 2009. The legal issues before the Commission involved the interpretation of sections 351 and 355 of the Fair Work Act and the obligations of an employer to assist in the conduct of a lawful ballot. Specifically, the Commission had to determine whether UGL had contravened section 351 by refusing to provide information to its employees regarding the proposed ballot and whether the Union had satisfied the requirements of section 355 to conduct a lawful ballot.

The Commission found that UGL had indeed failed to provide the necessary information to its employees, thereby contravening section 351 of the Fair Work Act. The Commission emphasised that employers have an obligation to assist in the lawful conduct of a ballot by providing employees with information about the proposed industrial action. The Union had demonstrated that UGL had refused to distribute the ballot papers, which was a clear breach of its obligations. The Commission also considered whether the Union had satisfied the requirements of section 355, including the provision of notice and information to the employer and the employees. The Commission concluded that the Union had met these requirements and that the proposed ballot was lawful.

As a result, the Commission ordered UGL to facilitate the proposed ballot by providing the necessary information to its employees and allowing them to vote on the proposed industrial action. The Commission noted that its order was intended to ensure that the employees had the opportunity to make an informed decision regarding the proposed industrial action. The final order required UGL to distribute the ballot papers to its employees and to provide them with the necessary information to enable them to vote on the proposed action. The Commission also noted that UGL had the right to contest the proposed industrial action and that the order was not a determination of the merits of the dispute.

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