National Union of Workers v Iplex Pipelines Australia Pty Ltd T/A Iplex Pipelines

[2018] FWC 4968

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protection action ballot order

National Union of Workers

Iplex Pipelines Australia Pty Ltd T/A Iplex Pipelines

(IA2018-4595)

Commissioner Hampton

ADELAIDE, 24 August 2018

Proposed protected action ballot of employees of Iplex Pipelines Australia Pty Ltd t/a Iplex Pipelines

An application has been made by the National Union of Workers (NUW) on 22 August 2018 under s.437 of the Fair Work Act 2009 (the Act) seeking a protected action ballot order in relation to certain employees of Iplex Pipelines Australia Pty Ltd T/A Iplex Pipelines (Iplex) covered by the Iplex Pipelines Pty Limited Enterprise Agreement 2016 – Elizabeth Manufacturing (the Agreement).

On 23 August 2018, the Commission wrote to Iplex seeking an indication of its position on the application and requested advice if the matter was to be contested.

On the same date, the NUW forwarded an amended application to the Commission which proposed minor changes to the ballot questions. That application was also provided to Iplex and the Commission provided an opportunity for Iplex to also make any submission on the proposal to amend the application. The NUW also confirmed service of the amended application on the Australian Electoral Commission as required by s.440 of the Act.

On 24 August 2018, the Commission was advised that Iplex did not oppose the amended application.

In the circumstances, I have decided to grant leave to amend the application and determine the matter on the papers without holding a hearing.

I have considered all of the material before me, including the statutory declaration of Mr Rowan Payne of the NUW setting out the steps taken by it in bargaining with Iplex and confirming that it has been, and is, genuinely trying to reach agreement with the respondent employer. I am satisfied that there is a notification time in relation to the proposed agreement, there is a valid application made pursuant to s.437, and that all of the requirements in s.443(1) of the Act have been met. Accordingly, I am obliged to issue an order in this matter.

An order in conformity with the Act is being issued in conjunction with this decision.[1]

COMMISSIONER

[1] PR620163

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Union of Workers (NUW) lodged an application with the Fair Work Commission under section 437 of the Fair Work Act 2009, requesting a protection action ballot order concerning certain employees of Iplex Pipelines Australia Pty Ltd T/A Iplex Pipelines (Iplex). The employees were covered by the Iplex Pipelines Pty Limited Enterprise Agreement 2016 – Elizabeth Manufacturing. The application was made on 22 August 2018, and Iplex was notified of the application on the same day. The NUW subsequently submitted an amended application on 23 August 2018, proposing minor changes to the ballot questions. Both applications were provided to Iplex, which did not oppose the amended application.

The primary legal issue the Commission had to decide was whether the requirements for a protected action ballot order under section 437 of the Fair Work Act were satisfied. This involved verifying that the notification time in relation to the proposed agreement had elapsed, that a valid application had been made, and that all procedural requirements under the Act had been fulfilled. The Commission also needed to determine if the amendment to the ballot questions was acceptable to Iplex, which had indicated no opposition to the amended application.

The Commissioner, Hampton, concluded that all statutory requirements for a ballot order had been met. The evidence, including a statutory declaration from Mr Rowan Payne of the NUW, demonstrated that the union had genuinely attempted to reach an agreement with Iplex. The Commission was satisfied that the notification period had passed and that the application, including its amendment, was valid. Consequently, the Commissioner determined that an order should be issued in accordance with the Act. The decision was made on the papers without a hearing, given Iplex's lack of opposition to the application.

In conjunction with the decision, the Commission issued an order in conformity with the Fair Work Act. This order granted the NUW's application for a protection action ballot order, allowing the ballot to proceed as requested.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established