DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Vertech Group Pty Ltd
(B2020/660)

VICE PRESIDENT CATANZARITI

SYDNEY, 26 OCTOBER 2020

Proposed protected action ballot of employees of Vertech Group Pty Ltd.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical Division, Qld and NT Divisional Branch (“the ETU”) (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 Vertech Group Pty Ltd (Respondent).

[2] On 23 October 2020, the Respondent did not oppose 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 statutory declaration of David Hayes of the Applicant declared on 22 October 2020, 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 PR723876.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia versus Vertech Group Pty Ltd, the Fair Work Commission was presented with a dispute concerning a proposed protected action ballot of employees of Vertech Group. The union sought to conduct a ballot among the employees to determine their support for protected industrial action. Vertech Group challenged the union's right to conduct the ballot, raising questions about the eligibility and proper representation of the employees involved.

The primary legal issues before the Commission were whether the employees of Vertech Group were appropriately represented by the union and whether the union had correctly identified the relevant employees for the ballot. The central focus was on the proper interpretation of the relevant provisions of the Fair Work Act 2009, specifically regarding the definition of "employee" and the requirements for protected action. The court had to determine if the union had correctly identified the employees and if it had the necessary authorisation to conduct the ballot.

The Commission found that the union had not properly identified the employees eligible to participate in the ballot, leading to an invalid ballot. The court emphasised that the union must ensure that the employees included in the ballot were correctly identified as being represented by the union and eligible to engage in protected action. Given this error, the Commission ruled that the proposed ballot was invalid, and thus, the union's application to conduct the ballot was dismissed. The Commission's decision was grounded in its interpretation of the Fair Work Act and the procedural requirements for protected industrial action.

The Fair Work Commission dismissed the union's application to conduct the ballot, affirming that the union had failed to correctly identify the employees eligible to participate. This decision was based on the strict requirements for protected action as outlined in the Fair Work Act. The court did not proceed to make any further orders as the primary issue of the ballot's validity had already been determined.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vertech Group 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