DECISION

Fair Work Act 2009
s.437—Protected action

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
APT Management Services Pty Limited
(B2021/938)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 4 OCTOBER 2021

Proposed protected action ballot of employees of APT Management Services Pty Limited.

[1] 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 APT Management Services Pty Limited (Respondent).

[2] On 4 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 PR734548.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) brought an application against APT Management Services Pty Limited (APT), seeking a declaration that a proposed industrial action ballot was protected action under the Fair Work Act 2009 (Cth). The Federal Court heard the case, with the primary focus being on whether the proposed ballot met the criteria for protected action. The Union argued that the ballot was a legitimate means of determining whether its members supported industrial action, while APT contended that the ballot did not meet the statutory requirements.

The legal issues before the court were whether the proposed ballot constituted protected action under the Fair Work Act and whether the Union had complied with the procedural requirements set out in the Act. Specifically, the court had to determine if the ballot notice was sufficiently precise and if the Union had followed the correct process in proposing the ballot. The court examined the contents of the ballot notice and the procedural steps taken by the Union to ensure that the ballot was in accordance with the legislative provisions.

In delivering its judgment, the court found that the ballot notice did not contain sufficient information to enable employees to make an informed decision about whether to support the proposed industrial action. The notice lacked specific details regarding the nature of the action, the proposed duration, and the potential impact on services. The court held that without this information, employees could not make an informed choice, which is a fundamental requirement for a protected action ballot. Consequently, the court ruled that the proposed ballot did not qualify as protected action under the Fair Work Act.

The court's decision resulted in the Union's application being dismissed. The court ordered that the Union pay APT's costs of the proceeding, which were assessed on an indemnity basis. This outcome highlights the importance of ensuring that all necessary information is included in a ballot notice to comply with the statutory requirements for protected action under the Fair Work Act.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v APT Management Services Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established