| [2023] FWC 805 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
Australian Municipal, Administrative, Clerical and Services Union-New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Branch
v
EnergyAustralia NSW Pty Ltd
(B2023/293)
| VICE PRESIDENT CATANZARITI | SYDNEY, 3 APRIL 2023 |
Proposed protected action ballot of employees of EnergyAustralia NSW Pty Ltd
This is an application by the “NSW Local Government, Clerical, Administrative, Energy, Airlines and Utilities Branch of the Australian Municipal, Administrative, Clerical and Services Union” known as the United Services Union (USU) (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of EnergyAustralia NSW Pty Ltd (Respondent).
On 3 April 2023, the Fair Work Commission was advised that the Respondent did not oppose the application.
In the circumstances, I have decided to determine the matter on the papers without holding a hearing.
On the basis of the material before me, including the statutory declaration of Graeme Kelly of the Applicant declared on 29 March 2023, 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.
An Order has been separately issued in PR760834.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR760835>
- AGLC
- Australian Municipal, Administrative, Clerical and Services Union-New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Branch v EnergyAustralia NSW Pty Ltd [2023] FWC 805
- Case
- [2023] FWC 805
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Commission was whether the union had satisfied the statutory requirements under section 437 of the Fair Work Act for holding a ballot. Specifically, the Commission had to determine if the union genuinely attempted to reach an agreement with the employer, as mandated by section 443(1) of the Act. Additionally, the Commission needed to assess if the notification time for the proposed agreement had been met, as stipulated by the Act. The union argued that it had fulfilled all necessary conditions and was genuinely attempting to reach an agreement with the employer.
The Commission found that the union had met the requirements for holding a ballot. This conclusion was based on the material presented, including a statutory declaration from Graeme Kelly of the USU, which detailed the union's efforts in bargaining with the employer and its ongoing attempts to reach an agreement. The Commission was satisfied that the union had indeed been genuinely trying to negotiate with the employer and that the notification time for the proposed agreement had been adhered to. Consequently, the application for the protected action ballot order was granted.
In light of the findings, the Fair Work Commission issued an order permitting the union to proceed with the ballot among its members. This decision was made on the basis of the presented evidence and the statutory declarations provided by the union, affirming their compliance with the legislative requirements for holding such a ballot.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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