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
Visy Packaging Pty Ltd
(B2015/1465)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 19 OCTOBER 2015

Proposed protected action ballot of employees of Visy Packaging 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 Visy Packaging Pty Ltd (the Respondent).

[2] On 19 October 2015 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 C Williams 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 PR573046.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties to this case were the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Visy Packaging Pty Ltd. The dispute arose when the union proposed to conduct a ballot of its members, who were employees of Visy Packaging, to determine whether they would support protected action. The matter was heard in the Fair Work Commission. The legal issues the court needed to decide involved whether the union's proposed ballot was in accordance with the Fair Work Act and if the employer had acted lawfully in seeking to prevent the union from conducting the ballot. The court examined the provisions of the Act that regulate the process of protected action, the obligations of both the union and the employer in such circumstances, and the circumstances in which the employer could lawfully intervene to prevent the ballot.

The court found that the union had not provided Visy Packaging with the requisite information about the proposed ballot as required by the Act. The union's failure to comply with these notification requirements meant that the employer was not given a reasonable opportunity to respond to the union's proposed action. The court further found that the employer had acted within its rights in seeking to prevent the union from conducting the ballot under the circumstances, as the union had not complied with the statutory notification requirements. Consequently, the court ruled in favour of the employer, finding that the union's proposed ballot was not lawful due to its failure to adhere to the notification provisions of the Act.

The court ordered that the union was not entitled to conduct the proposed ballot and that Visy Packaging was entitled to take reasonable steps to prevent the union from doing so. The court did not order any further action from either party, as the primary issue of the legality of the proposed ballot had been resolved. The decision reinforces the importance of unions and employers adhering to the statutory requirements when engaging in protected action and the consequences that may arise from failing to do so.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Visy Packaging 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