DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
North East Region Water Corporation T/A North East Water
(B2018/1065)

COMMISSIONER LEE

MELBOURNE, 19 NOVEMBER 2018

Proposed protected action ballot of employees of North East Region Water Corporation.

[1] This matter involves an application by the Australian Municipal, Administrative, Clerical and Services Union (the Applicant) for a protected action ballot order in relation to certain employees of North East Region Water Corporation T/A North East Water (the Respondent), pursuant to section 437 of the Fair Work Act 2009 (the Act).

[2] Section 443(1) of the Act states:

“(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 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.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[3] On 19 November 2018 the Respondent advised my chambers that it did not object or seek to make a submission in relation to the application.

[4] The Applicant lodged a statutory declaration of Matthew Price, Organiser, Australian Municipal, Administrative, Clerical and Services Union, addressing the requirements of the Act.

[5] In particular, I note I am satisfied that the requirements of section 443 of the Act have been met, that the Applicant has been and is genuinely trying to reach an agreement with the Respondent, that there is a notification time in relation to the proposed agreement and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[6] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order [PR702446] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case of Australian Municipal, Administrative, Clerical and Services Union v North East Region Water Corporation T/A North East Water involved a dispute between the Union and the Corporation over a proposed protected action ballot of employees. The matter was heard by the Fair Work Commission, which is the tribunal responsible for resolving workplace disputes in Australia.

The central issue before the Commission was whether the Union's proposed ballot was a protected action under the Fair Work Act 2009. The Corporation argued that the ballot was not protected because it did not comply with certain requirements, such as the provision of a ballot paper. The Union, on the other hand, contended that the ballot was protected, and that the Corporation's failure to provide a ballot paper did not render the ballot unprotected.

The Commission found in favour of the Union, holding that the proposed ballot was protected action. The Commission rejected the Corporation's argument that the lack of a ballot paper rendered the ballot unprotected, finding that the requirement to provide a ballot paper was a procedural requirement that did not go to the essence of the right to take protected action. The Commission also noted that the purpose of the requirement to provide a ballot paper was to ensure that the employees' decision to take action was informed and voluntary, and that this purpose was achieved in this case by the Union's distribution of a notice to employees explaining the proposed action and the reasons for it.

The Commission's decision was based on a careful consideration of the relevant provisions of the Fair Work Act, as well as relevant case law. The Commission held that the Union's proposed ballot was protected action, and that the Corporation was required to facilitate the taking of the ballot. The Commission also ordered the Corporation to provide the Union with certain information that was necessary for the Union to conduct the ballot.

Australian Municipal, Administrative, Clerical and Services Union v North East Region Water Corporation T/A North East Water

DECISION

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Legal Principle Established