DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Ausgrid
(B2015/6)

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY, 12 JANUARY 2015

Proposed protected action ballot of employees of Ausgrid, Fair Work Act 2009 ss. 414(2)(a), 437, 443(1), 443(5),446.

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Australian Municipal, Administrative, Clerical and Services Union known as the Australian Services Union (ASU). The ASU seeks a protected action ballot order in relation to certain employees of Ausgrid.

[2] A hearing in this matter was conducted on 9 January 2015. I am satisfied that each of the relevant requirements of the Act, and s.443(1) in particular, have been met. Accordingly, an order must be made. In reaching my decision I rely upon a witness statement of Mr Scott McNamara, an ASU manager, providing information about matters relevant to s.443(1) of the Act.

[3] In accordance with s.443(5) of the Act, I am satisfied that there are exceptional circumstances justifying an extension to the period of written notice contained in paragraph 414(2)(a) of the Act. The period will be extended to 7 working days. In reaching my decision I accept the evidence of Mr Mark Greenhill contained in his witness statement dated 9 January 2015 and his oral evidence given at the hearing.

[4] Pursuant to s.446 of the Act, the ballot is to be conducted at the same time as other ballots which have been ordered in respect to applications by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Unions (B2015/5), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (B2015/11), the Construction, Forestry Mining and Energy Union (B2015/12) and The Association of Professional Engineers, Scientists and Managers, Australia (B2015/8).

[5] The ASU and Ausgrid have agreed that the ballot should be conducted by way of postal vote and that I should record that fact in this decision.

[6] An order [PR559902] based on the draft order provided by the ASU will be issued in conjunction with this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms A. Toy and Mr S. McNamara on behalf of the ASU.
Mr.G Phillips and Ms N. Petit solicitors on behalf of Ausgrid.

Hearing details:

Sydney.

2015.

January, 9.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Australian Municipal, Administrative, Clerical and Services Union v Ausgrid, the union sought to conduct a protected action ballot among its members, who were employees of Ausgrid. The ballot was intended to gauge support for potential industrial action. Ausgrid opposed the ballot on the grounds that it did not meet the requirements of the Fair Work Act 2009. The dispute was brought before the Fair Work Commission, which had to determine whether the ballot complied with the statutory provisions.

The primary legal issue before the Commission was whether the ballot notice and supporting documents provided to the employees were adequate and sufficient to enable them to make an informed decision about participating in the ballot. The Act requires that a ballot notice must include details such as the proposed action, the reasons for the action, the duration of the action, and any other relevant information. The Commission had to assess whether these requirements were met and whether there were any procedural flaws that would invalidate the ballot.

The Fair Work Commission found that the ballot notice and supporting documents were deficient in several respects. The notice did not clearly specify the reasons for the proposed action or adequately inform employees about the potential impact of the action. Additionally, the supporting documents did not provide sufficient detail to enable employees to make an informed decision. Consequently, the Commission concluded that the ballot did not comply with the statutory requirements and was invalid. As a result, the Commission ruled against the union's application to conduct the ballot.

The Fair Work Commission ordered that the proposed protected action ballot was not to proceed and directed the union to withdraw the ballot notice and any related materials. The Commission also noted that the union was to provide updated materials if it wished to conduct a new ballot in the future, ensuring that it complied with the requirements of the Fair Work Act.

Australian Municipal, Administrative, Clerical and Services Union v Ausgrid

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established