DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Endeavour Energy
(B2015/7)

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY, 12 JANUARY 2015

Proposed protected action ballot of employees of Endeavour Energy, 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 Endeavour Energy.

[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 (B2015/152) and The Association of Professional Engineers, Scientists and Managers, Australia (B2015/9).

[5] The ASU and Endeavour Energy 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 [PR559903] 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 Endeavour Energy.

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 Endeavour Energy, the Fair Work Commission was tasked with resolving a dispute between the union and the employer regarding the proposed protected action ballot of employees of Endeavour Energy. The union sought to conduct a protected action ballot in relation to potential industrial action, while the employer opposed the ballot on the grounds that it did not comply with the requirements of the Fair Work Act 2009. The legal issues before the Commission were whether the ballot notice provided by the union was compliant with the statutory requirements, and if not, whether the failure to comply rendered the ballot invalid. The Commission considered the specific provisions of the Fair Work Act, including sections 414(2)(a), 437, 443(1), 443(5), and 446, which outline the process for protected action ballots and the requisite contents of the ballot notice.

The Fair Work Commission examined the ballot notice submitted by the union and found that it did not include all the information required by section 443(1) of the Fair Work Act. Specifically, the notice did not contain a summary of the proposed industrial action and the reasons for it, as mandated by the statute. The Commission determined that this omission was a significant defect, rendering the ballot notice invalid under section 443(5) of the Act. Consequently, the Commission ruled that the proposed ballot could not proceed as it did not meet the legal requirements for a protected action ballot. The Commission's decision was based on a strict interpretation of the statutory provisions, emphasising the importance of compliance with the prescribed procedures to ensure the validity of any proposed industrial action.

The Fair Work Commission's decision was that the proposed protected action ballot by the union was invalid due to the non-compliance with the statutory requirements for the ballot notice. As a result, the union's attempt to conduct the ballot was unsuccessful. The Commission did not grant the union's request to proceed with the ballot, effectively halting any potential industrial action. This decision underscores the necessity for unions to adhere strictly to the legal framework governing protected action ballots to ensure their validity and enforceability under the Fair Work Act. The Commission's ruling reinforces the importance of precise compliance with statutory provisions when initiating industrial action, thereby maintaining the balance between the rights of employees and employers within the industrial relations system.

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