DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Wormald Australia Pty Ltd
(B2019/746)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 6 SEPTEMBER 2019

Proposed protected action ballot of employees of Wormald Australia Pty Ltd.

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

[2] On 6 September 2019, 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 Clark 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 PR712100.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia brought proceedings against Wormald Australia Pty Ltd in the Fair Work Commission, seeking an order that the company comply with a request to conduct a ballot of employees to determine whether they supported protected action. The union claimed that the company had failed to facilitate a ballot, as required under the Fair Work Act 2009. The company argued that the union's request was invalid because the union did not have a sufficient number of members to represent the employees. The Commission was required to determine whether the union had standing to request a ballot and whether the company was required to facilitate the ballot if the union did have standing.

The Commission found that the union did have standing to request a ballot, as it had a sufficient number of members to represent the employees. The Commission noted that the union had provided evidence of membership and that the company had not challenged the validity of this evidence. The Commission also found that the company was required to facilitate the ballot, as it was a lawful request made by a union with standing. The company's argument that the union did not have a sufficient number of members was rejected, as the evidence provided by the union was sufficient to establish its standing. The Commission ordered the company to facilitate the ballot as requested by the union.

The orders made by the Commission were that Wormald Australia Pty Ltd comply with the union's request to conduct a ballot of employees to determine whether they supported protected action. The company was required to facilitate the ballot in accordance with the union's request and the provisions of the Fair Work Act 2009. The union was also ordered to provide the company with a copy of its request and any other relevant documentation. The company was ordered to comply with these orders within 28 days of the Commission's decision.

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