DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Viva Energy Refining Pty Ltd
(B2021/1202)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 8 DECEMBER 2021

Proposed protected action ballot of employees of Viva Energy Refining Pty Ltd

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Viva Energy Refining Pty Ltd (Respondent).

[2] On 8 December 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 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 PR736563.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission was asked to decide on an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) for an order allowing a ballot of its members employed by Viva Energy Refining Pty Ltd (the Respondent) regarding proposed protected action. The Respondent did not object to the application, leading to the Deputy President, Clancy, determining the matter based on the submitted documents without holding a hearing. The Applicant's declaration, provided by Ms Hill, outlined the steps taken in bargaining with the Respondent and affirmed that the union had been genuinely attempting to reach an agreement with the employer. The Deputy President concluded that a notification period existed for the proposed agreement and that the statutory requirements under section 443(1) of the Fair Work Act 2009 had been fulfilled. Consequently, the application was granted, and a separate order was issued.

The legal issues before the Deputy President involved verifying whether the union had genuinely tried to negotiate with the employer and if the statutory notification period had been observed, as required by section 443(1) of the Fair Work Act 2009. The union's declaration, which detailed the bargaining process and its genuine efforts to reach an agreement, was pivotal in addressing these issues. Additionally, the Deputy President had to determine if the proposed agreement met the criteria for a notification period, ensuring compliance with the Act's provisions.

In making the decision, the Deputy President reviewed the declaration provided by Ms Hill, which included comprehensive details of the union's bargaining efforts and the existence of a notification period for the proposed agreement. The Respondent's lack of objection to the application further supported the conclusion that the union had met the necessary requirements under the Act. Given the Applicant's assertion of genuine bargaining efforts and the absence of objections from the Respondent, the Deputy President found that the union had satisfied the statutory obligations. Therefore, the application for a protected action ballot was approved.

In light of the decision, the Fair Work Commission issued an order permitting the union to proceed with the ballot of its members employed by Viva Energy Refining Pty Ltd. This order was separate from the main decision and was documented in PR736563. The union can now conduct the ballot as per the terms of the Fair Work Act 2009, subject to the notification period and the requirements that were satisfied in this case.

Viva Energy Refining Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established