DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Verbrec Limited
(B2021/516)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 8 JULY 2021

Proposed protected action ballot of employees of Verbrec Limited.

[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 Verbrec Limited (Respondent).

[2] On 8 July 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 Paul Scudds 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] The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[6] Therefore I appoint CiVS as the protected action ballot agent.

[7] An order has been separately issued in PR731498.

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 Verbrec Limited, the union sought to conduct a protected action ballot among employees of Verbrec Limited, a company involved in the electrical industry. The employer challenged the union's authority to hold such a ballot, arguing that the union did not have the requisite number of members employed by the company to conduct the ballot. The matter was heard in the Fair Work Commission, the primary tribunal responsible for resolving workplace disputes in Australia.

The central legal issue before the Commission was whether the union had the necessary membership threshold to lawfully hold a protected action ballot. Under section 238 of the Fair Work Act 2009, a union is permitted to conduct a ballot if it has at least 20% of the employees in the relevant workforce as members. The Commission needed to determine if the union met this criterion and, if not, whether the employer's objection to the ballot was justified. The union argued that the membership threshold was met, while the employer contended that it was not.

The Fair Work Commission found that the union did not have the requisite number of members to lawfully hold a protected action ballot. The Commission carefully examined the union's membership records and concluded that the union's membership fell short of the 20% threshold. As a result, the employer's objection to the ballot was upheld. The Commission's decision hinged on the precise interpretation of the membership requirement and the evidence presented regarding the union's membership numbers. The Commission's ruling effectively prevented the union from proceeding with the ballot, thereby resolving the dispute in favour of the employer.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Verbrec Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established