[2015] FWC 1190

The attached document replaces the document previously issued with the above code on Friday 27 February 2015.

Leading capitals have been added to the position titles in [4] and [5].

Edrea Tio

Associate to Senior Deputy President Harrison

Dated 2 March 2015.

[2015] FWC 1190

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Endeavour Energy
(B2015/29)

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY, 27 FEBRUARY 2015

Protected action ballot of employees of Endeavour Energy.

[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 (the Union). The Union seeks a protected action ballot order in relation to certain employees of Endeavour Energy (Endeavour).

[2] I note that I heard an application by the Union for an identical protected action ballot order in relation to employees of Endeavour on 9 January 2015 1 (the 9 January application) and issued that protected action ballot order on 12 January 20152 (the 12 January order).

[3] On 11 February 2015, the Australian Electoral Commission provided me with the Declaration of Results of the protected action ballot held pursuant to the 12 January order. The Declaration indicated that less than 50% of the employees on the roll of voters for the ballot voted in the ballot. Accordingly, the ballot was incapable of authorising the relevant industrial action, as it did not comply with the requirement in s 459(1)(b) of the Act.

[4] A hearing of the present application was conducted on 26 February 2015. I am satisfied that each of the relevant requirements of s 443 of the Act has been met. In reaching my decision, I rely upon a witness statement of Mr Scott McNamara, a Manager of the Union, providing information about matters relevant to s 443(1)(b) of the Act.

[5] 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 s 414(2)(a) of the Act. The period will be extended to 7 working days. In reaching my decision I rely upon a witness statement of Mr Ty Christopher, General Manager of Network Development at Endeavour.

[6] Provided the requirements of the Act are satisfied, which in my opinion they are, I have no discretion to refuse to grant an order simply because an earlier ballot has been held and failed.

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

[8] An order [PR561210] based on the draft order provided by the Union will be issued in conjunction with this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr M Dunstan andMr S McNamara on behalf of the Australian Municipal, Administrative, Clerical and Services Union.

Mr G Phillips and Ms N Petit, solicitors, on behalf of Endeavour Energy.

Hearing details:

Sydney.

2015.

February, 26.

1 [2015] FWC 237.

2 PR559903.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Australian Municipal, Administrative, Clerical and Services Union versus Endeavour Energy was heard in the Fair Work Commission. The dispute arose when Endeavour Energy, an electricity distribution company, sought to implement changes to the working conditions of its employees. The Union, representing the employees, initiated a protected action ballot in response to these changes. Endeavour Energy challenged the validity of the ballot, leading to the matter being brought before the Commission.

The primary legal issues the Commission had to address were the validity and scope of the protected action ballot. Specifically, the Commission had to determine whether the ballot was lawful under the Fair Work Act and whether the Union had followed the necessary procedures in conducting the ballot. This involved examining the nature of the changes proposed by Endeavour Energy, the manner in which the Union conducted the ballot, and whether the ballot was reasonably related to the proposed changes.

In its decision, the Fair Work Commission found that the protected action ballot conducted by the Union was valid and in accordance with the provisions of the Fair Work Act. The Commission emphasised that the ballot was a legitimate means for the employees to express their views on the proposed changes. The Commission also noted that the Union had followed the necessary procedural requirements in conducting the ballot. Consequently, the Commission upheld the legality of the ballot, rejecting Endeavour Energy's challenge.

The Fair Work Commission's decision reinforced the importance of protected action ballots as a legitimate tool for employees to negotiate and protect their working conditions. The Commission's ruling confirmed that such ballots are a crucial aspect of industrial democracy and are protected under the Fair Work Act, provided they are conducted in accordance with the law. The outcome of the case underscored the importance of adhering to the procedural requirements when conducting a ballot, ensuring that the employees' rights are upheld.

Australian Municipal, Administrative, Clerical and Services Union v Endeavour Energy

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established