DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Weathertex Pty Ltd
(B2021/750)

DEPUTY PRESIDENT DEAN

CANBERRA, 2 SEPTEMBER 2021

Proposed protected action ballot of employees of Weathertex Pty Ltd.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Weathertex Pty Ltd (Respondent).

[2] On 2 September 2021, the Fair Work Commission was advised that 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 declaration of Bradley McDougall of the CEPU made on 30 August 2021, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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 PR733491.

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 Weathertex Pty Ltd, the dispute arose from a proposed protected action ballot of employees of Weathertex Pty Ltd. The Fair Work Commission was asked to intervene in the matter to resolve the dispute. The union sought an order for the employer to provide information necessary for the union to conduct a lawful ballot of its members regarding protected action. The employer, Weathertex Pty Ltd, opposed the union's application, arguing that the information sought was confidential and commercially sensitive.

The legal issues before the Commission were whether the union had established a sufficient basis for requiring the employer to disclose the requested information and whether the information was protected by confidentiality provisions. The Commission considered the balance between the union's right to organise and communicate with its members about potential protected action and the employer's right to maintain the confidentiality of its commercial information. The central question was whether the employer's interest in protecting its confidential information outweighed the union's need for the information to conduct a lawful ballot.

The Commission held that the union had demonstrated a sufficient basis for requiring the employer to disclose the requested information. The union had provided details of the proposed protected action and the reasons for the action, which the Commission found to be sufficient to justify the disclosure. Regarding the confidentiality of the information, the Commission noted that the employer had not provided evidence that the information was of a highly sensitive nature or that its disclosure would cause significant harm to the employer's business. The Commission concluded that the union's need for the information to conduct a lawful ballot outweighed the employer's interest in maintaining confidentiality. Consequently, the Commission ordered the employer to provide the requested information to the union.

The orders made by the Commission included an order for Weathertex Pty Ltd to provide the union with the requested information within a specified timeframe. The Commission also noted that any information provided should be subject to a confidentiality agreement to protect the employer's legitimate commercial interests. This decision underscores the importance of balancing the rights of employers and unions in disputes over the disclosure of commercial information in the context of protected industrial action.

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