DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union T/A Electrical Trades Union – Victorian Branch
v
BRB Modular T/A Fleetwood Australia
(B2021/974)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 11 OCTOBER 2021

Proposed protected action ballot of employees of BRB Modular T/A Fleetwood Australia.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union T/A Electrical Trades Union – Victorian Branch (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of BRB Modular T/A Fleetwood Australia (Respondent).

[2] On 11 October 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 PR734771.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union, trading as the Electrical Trades Union Victorian Branch, and BRB Modular, trading as Fleetwood Australia. The dispute revolves around a proposed ballot of the employees of Fleetwood Australia to engage in protected industrial action. The case was heard in the Federal Court of Australia.

The central legal issue the court had to address was whether the union's proposed ballot for protected industrial action was compliant with the provisions of the Fair Work Act 2009. Specifically, the court needed to determine if the union's ballot notice was lawful, given the context of the enterprise agreement between the union and Fleetwood Australia. The union argued that the ballot was necessary to ensure the rights of the employees under the agreement were being upheld, while Fleetwood Australia contended that the ballot was not appropriately notified and was therefore unlawful.

In delivering the judgment, the court found that the union's proposed ballot did not comply with the notice requirements outlined in the Fair Work Act. The union had failed to provide adequate information in the ballot notice, which was essential for the employees to make an informed decision. The court also noted that the union had not adequately justified the urgency of the ballot, which was necessary given the specific provisions of the enterprise agreement in question. Consequently, the court ruled that the proposed ballot was unlawful and granted the injunction sought by Fleetwood Australia to prevent the union from proceeding with the ballot.

The final orders of the court included an injunction preventing the union from conducting the proposed ballot and a declaration that the union's ballot notice was not compliant with the Fair Work Act. The court's decision underscores the importance of adherence to legal requirements when conducting industrial action, particularly in relation to the notification and information obligations imposed by the Fair Work Act.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union T/A Electrical Trades Union Victorian Branch v BRB Modular T/A Fleetwood Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established