Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Zinfra Contracting Pty Ltd Summary

[2018] FWC 4969

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protection action ballot order

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

Zinfra Contracting Pty Ltd

(IA2018-4590)

Deputy President Gostencnik

MELBOURNE, 28 August 2018

Proposed protected action ballot of employees of Zinfra Contracting Pty Ltd.

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 Zinfra Contracting Pty Ltd (Respondent).

On 24 August 2018, my Associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the statutory declaration of Mr D McKinley 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.

The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Mr Richard Kidd of the Australian Election Company (Election Company). Mr Kidd has relevant experience in conducting protected action ballots and has previously worked as the Queensland State Director, Industrial Elections for the AEC. I am satisfied that Mr Kidd is a fit and proper person to conduct the ballot. I am also satisfied that Mr Kidd and the Election Company are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. Mr Kidd has agreed to be the protected action ballot agent and he and the Election Company are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

Therefore I appoint Mr Kidd as the protected action ballot Agent.

An order has been separately issued in PR620169.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission received an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) under section 437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Zinfra Contracting Pty Ltd (Respondent). The Applicant was seeking a ballot order to allow its members to vote on proposed protected action. The Respondent did not object to the application, and the Deputy President decided to determine the matters on the papers without holding a hearing. The key legal issues in this case were whether the notification time for the proposed agreement existed and if the requirements in section 443(1) of the Act were fulfilled.

The Deputy President examined the material before them, including the statutory declaration of Mr D McKinley of the Applicant, which outlined the steps taken by the Applicant in bargaining with the Respondent and their genuine efforts to reach an agreement. The Deputy President was satisfied that the notification time was in place for the proposed agreement and that the requirements in section 443(1) of the Act were met. The Applicant also sought to appoint a person other than the Australian Electoral Commission (AEC) as the ballot agent for the protected action ballot. The proposed ballot agent was Mr Richard Kidd of the Australian Election Company (Election Company). The Respondent did not oppose this request. Mr Kidd had relevant experience in conducting protected action ballots and had previously worked as the Queensland State Director, Industrial Elections for the AEC. The Deputy President was satisfied that Mr Kidd was a fit and proper person to conduct the ballot and that he and the Election Company were capable of ensuring the secrecy and security of the votes and conducting the ballot expeditiously.

Based on the evidence and the arguments presented, the Deputy President appointed Mr Kidd as the protected action ballot agent. Mr Kidd agreed to be the ballot agent, and he and the Election Company were bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot. An order has been separately issued in PR620169.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Zinfra Contracting Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established