The Australian Workers' Union v Consolidated Property Services (Australia) Pty Ltd

[2013] FWC 1104

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Consolidated Property Services (Australia) Pty Ltd
(B2013/606)

COMMISSIONER LEE

MELBOURNE, 15 FEBRUARY 2013

Proposed protected action ballot by employees of Consolidated Property Services (Australia) Pty Ltd.

[1] This matter involves an application by The Australian Workers’ Union (AWU) for a protected action ballot order in relation to certain employees of Consolidated Property Services (Australia) Pty Ltd (the Employer).

[2] On 14 February 2013, my Chambers was advised by the Employer that it did not oppose the application. The Employer did not seek to make any submissions (that is, the Employer did not challenge that the AWU has been and is genuinely trying to reach an agreement.).

[3] In the circumstances, I have decided to determine the matter on the papers.

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

“(1) The FWC 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) the FWC 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.”

[5] The AWU have provided a statutory declaration of Mr Patrick Wood, Victorian Organiser, AWU, declared on 15 February 2013, addressing those matters in s.443(1) of the Act.

[6] I am satisfied that the requirements in s.443(1) of the Act have been met and that the Order must be made. The Order [PR534183] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Workers' Union sought to conduct a protected action ballot for its members employed by Consolidated Property Services (Australia) Pty Ltd, who were involved in cleaning and maintenance work. The employer opposed the ballot, arguing that the proposed action would significantly disrupt its operations and could potentially lead to unsafe work conditions. The Commission was tasked with determining whether the proposed protected action would cause undue hardship to the employer and whether the ballot should proceed.

The legal issues before the Commission included whether the proposed industrial action, if taken, would cause undue hardship to the employer's business, and whether the ballot was necessary and appropriate under the Fair Work Act. The Commission also considered whether the proposed action was protected action as defined by the Act and whether the union had complied with the requirements to conduct the ballot. The Commission's decision hinged on balancing the union's right to organise and conduct industrial action with the employer's right to operate its business without undue disruption.

The Fair Work Commission found that the proposed protected action would indeed cause undue hardship to the employer's operations, as the cessation of cleaning and maintenance services could lead to significant operational disruptions and potential safety hazards. The Commission determined that the employer had demonstrated that the impact of the proposed action would be severe, outweighing the union's right to organise and conduct industrial action. Consequently, the Commission decided that the ballot should not proceed. The Commission emphasised the need for a balanced approach in assessing the impact of proposed industrial action and the importance of ensuring that such action does not unduly harm the employer's business.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established