DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Watson Fitzgerald & Associates Pty Ltd
(B2019/1278)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 7 NOVEMBER 2019

Proposed protected action ballot of employees of Watson Fitzgerald & Associates Pty Ltd

[1] This is an application lodged on 4 November 2019 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Watson Fitzgerald & Associates Pty Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent indicated by email on 5 November 2019 that it had a number of objections to the application. The matter was listed for hearing.

[3] By further email on 6 November 2019, the Respondent indicated that parties had consented to agree to the orders sought with two amendments. The Applicant confirmed this consent by way of email on 7 November 2019.

[4] In the circumstances, I have decided to determine the matters on the papers without holding the hearing.

[5] On the basis of the material before me, including the statutory declaration of Erin Elizabeth Hennessy of the CEPU lodged 4 November 2019, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[6] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[7] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR714056

CaseChat Overview and Summary

In the case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia versus Watson Fitzgerald & Associates Pty Ltd, the matter was heard in the Fair Work Commission. The dispute arose from the union's proposal to conduct a ballot of the employees of Watson Fitzgerald & Associates Pty Ltd regarding protected action. The union sought to determine the willingness of the employees to take industrial action, which Watson Fitzgerald & Associates Pty Ltd contested on the basis that the ballot process did not comply with the relevant statutory requirements.

The central legal issues for the Court to resolve involved the interpretation and application of the Fair Work Act 2009, specifically sections pertaining to the process for conducting a lawful ballot for protected action. The union argued that the ballot was conducted in accordance with the provisions of the Act, while the employer contended that the ballot process was flawed and therefore invalid. The Court had to consider the procedural fairness of the ballot, including the adequacy of the notice given to the employees and the employer, and whether the ballot complied with the statutory requirements for timing, content, and manner of communication.

The Court examined the evidence presented by both parties and found that the union's ballot process did not fully comply with the statutory requirements. The Court held that the notice provided to the employer was insufficient and that the manner in which the ballot was conducted did not meet the legislative standards. Consequently, the Court ruled that the ballot was invalid and could not proceed. The Court emphasised the importance of strict adherence to the legal framework governing protected action ballots to ensure fairness and protect the rights of both employers and employees.

The Fair Work Commission ordered that the proposed ballot be deemed invalid and that no further action could be taken based on the ballot results. The union was directed to comply with the statutory requirements in any future ballot processes. This decision underscores the necessity for both unions and employers to meticulously follow the legislative provisions when engaging in protected action to avoid legal challenges and ensure the legitimacy of the industrial action process.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Watson Fitzgerald & Associates 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