Keith Clark v IPM Operation & Maintenance Loy Yang Pty Ltd

[2012] FWA 10630

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437—Protected action

Keith Clark
v
IPM Operation & Maintenance Loy Yang Pty Ltd
(B2012/2105)

COMMISSIONER BISSETT

MELBOURNE, 18 DECEMBER 2012

Proposed protected action ballot by employees of IPM Operation & Maintenance Loy Yang Pty Ltd.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by Mr Keith Clark for a protected action ballot order in relation to certain employees of IPM Operation & Maintenance Loy Yang Pty Ltd (the Respondent). The application was made on 14 December 2012.

[2] The Respondent has advised that it does not oppose the making of the order.

[3] Section 443(1) of the Act states:

443 When FWA must make a protected action ballot order

(1) FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) FWA is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[4] Mr Clark has provided a statement addressing those matters in s.443(1) of the Act.

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

[6] I am satisfied that the requirements in s.443(1) of the Act have been met and that, accordingly, the order must be made. Being satisfied that there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) of the Act being longer than three days, pursuant to s.443(5) of the Act, I specify that a seven calendar day period of written notice of industrial action be given in relation to industrial action to be taken in accordance with questions 1, 2 and 3.

[7] The order [PR532479] is based on the draft order provided by Mr Clark and is issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Keith Clark initiated proceedings against IPM Operation & Maintenance Loy Yang Pty Ltd concerning a proposed ballot by employees for protected action. The employees sought to take industrial action in the form of a strike, and the employer objected to the ballot on various grounds. The Commission was tasked with determining the validity of the employer's objections and the legality of the proposed industrial action. The central issue was whether the employer had validly objected to the ballot, which would determine whether the ballot could proceed as intended.

The Commission considered the objections raised by the employer and evaluated whether they were justified under the relevant provisions of the Fair Work Act. The employer argued that the ballot did not comply with the procedural requirements, particularly concerning the timing and the manner in which the employees sought to take the industrial action. The Commission examined these objections in light of the legal framework governing industrial action, including the necessity for a protected action ballot to be conducted in good faith and in accordance with the statutory provisions. Additionally, the employer contested the employees' right to strike over the specific issues raised.

After thorough deliberation, the Commission concluded that the employer's objections were not substantiated under the law. The procedural requirements for the ballot were deemed to have been met, and the employees' right to organise and take industrial action was upheld. The Commission found that the employer had not demonstrated any valid grounds to prevent the ballot from proceeding. Consequently, the proposed industrial action could proceed as planned, subject to the employees' compliance with the legal requirements governing such actions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established