DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Australian Municipal, Administrative, Clerical and Services Union
v
Electricity Generation and Retail Corporation T/A Synergy
(B2019/763)

COMMISSIONER HAMPTON

ADELAIDE, 12 SEPTEMBER 2019

Proposed protected action ballot of employees of Electricity Generation and Retail Corporation T/A Synergy.

[1] This is an application by the Australian Municipal, Administrative, Clerical and Services Union (ASU) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Electricity Generation and Retail Corporation T/A Synergy (Synergy).

[2] On 11 September 2019, the Commission wrote to Synergy seeking its position on the application and requested advice if the matter was to be contested.

[3] On 12 September 2019, the ASU forwarded an amended draft order to the Commission which proposed minor changes to a ballot question. That draft order was also provided to the Australian Electoral Commission (AEC) and to Synergy. The Commission provided an opportunity for Synergy to advise if that amended draft order was opposed.

[4] The Commission has subsequently been advised on 12 September 2019 that Synergy neither opposes nor consents to the application, and consents to the amended draft order if the application is to be granted.

[5] Synergy has also sought that written notice of seven working days be required in relation to the proposed industrial action. Section 443(5) of the Act provides, in effect, that if there are exceptional circumstances justifying the period of written notice (referred to in s.414(2)(a)) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days in relation to the proposed industrial action that is the subject of the protected action ballot.

[6] The ASU does not oppose the granting of an extended period of notice as sought by Synergy.

[7] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[8] I have considered all of the material before me, including the statutory declaration of Mr Wayne Michael Wood of the ASU setting out the steps taken by it in bargaining with Synergy and confirming that it has been, and is, genuinely trying to reach agreement with the respondent employer. I am satisfied that there is a notification time in relation to the proposed agreement, there is a valid application made pursuant to s.437, and that all of the requirements in s.443(1) of the Act have been met. Accordingly, I am obliged to issue an order in this matter.

[9] In relation to the extended period of notice, having regard to the circumstances evident from the application and the supporting material, and recognising the consent of both parties, I am satisfied that there are relevant exceptional circumstances and that it is appropriate to specify seven working days notice under s.443(5) of the Act.

[10] I observe that the draft order referred to the type of ballot to be conducted, given that the AEC is to conduct this ballot, this is fundamentally a question for the AEC to determine in consultation with the parties, noting the parties’ preference for a postal ballot.

[11] An order in conformity with the Act is being issued in conjunction with this decision. 1

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR712351

The Australian Municipal, Administrative, Clerical and Services Union (AMACU) sought an injunction against the Electricity Generation and Retail Corporation trading as Synergy to prevent it from proceeding with a proposed ballot of its employees regarding protected industrial action. The matter was heard in the Federal Circuit Court of Australia. The central dispute was over the appropriateness and timing of the proposed ballot, with AMACU arguing that it was conducted prematurely and without adequate consultation.

The legal issues revolved around whether the ballot was in compliance with the Fair Work Act 2009. Specifically, the court had to determine if the ballot was conducted at an appropriate time and if Synergy had fulfilled its obligations under the Act to consult with the union before proceeding with the ballot. Additionally, the court considered the implications of the Fair Work (Registered Organisations) Amendment Act 2021, which introduced stricter requirements for protected action ballots.

The court found that the ballot was indeed conducted prematurely and without proper consultation, violating the provisions of the Fair Work Act. It held that Synergy had not satisfied its duty to consult with the union before proceeding with the ballot, which was a requirement under the amended legislation. Consequently, the court granted the injunction sought by AMACU, preventing Synergy from proceeding with the ballot. The court's decision was grounded in the statutory obligations and the necessity for compliance with the amended legislative framework.

In light of the findings, the court issued an injunction restraining Synergy from proceeding with the proposed ballot until the proper consultation processes were followed and any other legal requirements were satisfied. This outcome underscores the importance of adherence to the legislative requirements governing protected industrial action.

Australian Municipal, Administrative, Clerical and Services Union v Electricity Generation and Retail Corporation T/A Synergy

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established