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

[2023] FWC 901

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

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

Zinfra Contracting Pty Ltd T/A Zinfra

(B2023/346)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 18 APRIL 2023

Proposed protected action ballot of employees of Zinfra Contracting Pty Ltd Trading as Zinfra

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 T/A Zinfra (Respondent).

On 17 April 2023 my Associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the declaration of Mr Lee Archer 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.

An order has been separately issued in PR761150.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has considered an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia for a protected action ballot order in relation to certain employees of Zinfra Contracting Pty Ltd T/A Zinfra. The application was made under section 437 of the Fair Work Act 2009, and the hearing was conducted without objections from the respondent. The union sought the order following negotiations with the respondent that did not result in an agreement, and it was necessary to determine if the requirements for a protected action ballot were met.

The central legal issue was whether the union had fulfilled the conditions set out in section 443(1) of the Fair Work Act to conduct a ballot for protected action. This included establishing that a notification time had been provided and that the union had genuinely attempted to reach an agreement with the employer. The declaration provided by Mr Lee Archer of the union, which detailed the bargaining process and the union's efforts to negotiate with the employer, was central to this determination.

The Deputy President of the Fair Work Commission, Clancy, found that the union had indeed fulfilled the requirements for a notification time and had genuinely tried to reach an agreement with the employer. The decision was made based on the material presented, including the declaration by Mr Archer and the lack of objections from the employer. Consequently, the application for a protected action ballot order was approved. A separate order was issued in PR761150 to formalise this decision.

This decision underscores the Commission's role in ensuring that the processes for protected industrial action are followed correctly and that genuine efforts to resolve disputes through negotiation are recognised. The approval of the ballot order allows the union to proceed with its planned industrial action, subject to the conditions and procedures outlined in the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established