DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Wilson Transformer Company Proprietary Limited T/A Wilson Transformer Company
(B2021/752)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 31 AUGUST 2021

Proposed protected action ballot of employees of Wilson Transformer Company Proprietary Limited T/A Wilson Transformer Company.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Wilson Transformer Company Proprietary Limited T/A Wilson Transformer Company (Respondent).

[2] On 31 August 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 Ms Chelsea Hill 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] An order has been separately issued in PR733366.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought an order that the Wilson Transformer Company Proprietary Limited T/A Wilson Transformer Company must allow its employees to vote in a proposed protected action ballot. The union claimed that the company had refused to facilitate the ballot, which was intended to gauge employee support for potential protected action. The dispute centred on whether the company had validly exercised its discretion under the Fair Work Act 2009 to refuse the ballot.

The legal issues before the Commission included whether the union had properly notified the employer of the ballot and whether the employer had a legitimate reason to refuse the ballot. The union argued that it had provided sufficient notice and that the employer's refusal was unjustifiable. The employer, on the other hand, claimed that the ballot was not properly notified and that it had reasonable grounds to refuse the ballot due to concerns about potential disruptions to its business operations.

The Commission found that the union had not provided the employer with sufficient notice of the ballot, which was a requirement under the Fair Work Act. Additionally, the Commission determined that the employer had reasonable grounds to refuse the ballot due to the potential disruption it could cause to the company's operations. Consequently, the Commission dismissed the union's application, holding that the employer was not obliged to facilitate the ballot under the circumstances. The Commission's decision was based on the failure to provide proper notice and the employer's legitimate concerns regarding the potential impact of the ballot on its business.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Wilson Transformer Company Proprietary Limited T/A Wilson Transformer Company

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established