Australian Municipal, Administrative, Clerical and Services Union v NSW Electricity Network Operations Pty Limited as Trustee for NSW Electricity Networks Operations Trust trading as Transgrid

[2024] FWC 1221

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Municipal, Administrative, Clerical and Services Union
v

NSW Electricity Network Operations Pty Limited as Trustee for NSW Electricity Networks Operations Trust trading as Transgrid

(B2024/526)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 10 MAY 2024

Proposed protected action ballot of employees of NSW Electricity Network Operations Pty Limited as Trustee for NSW Electricity Networks Operations Trust.

This is an application by the Australian Municipal, Administrative, Clerical and Services Union (ASU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of NSW Electricity Network Operations Pty Limited as Trustee for NSW Electricity Networks Operations Trust trading as Transgrid (Transgrid or Employer).

I note that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia have made a separate application for a protected action ballot order in relation the same proposed agreement.[1]

On 9 May 2024, the Commission was advised that the Employer did not object to the Application as amended in certain respects.

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

On the basis of the material before me, including the declaration of Graeme Kelly, Branch Secretary, setting out the steps taken by the ASU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Transgrid, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

An Order has been separately issued in PR774697.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 29 May 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter B2024/524. That Member will issue an Order requiring their attendance in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] B2024/524.

[2] This is, 10 working days from the Commencement Date, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has recently addressed an application filed by the Australian Municipal, Administrative, Clerical and Services Union (ASU) under section 437 of the Fair Work Act 2009, requesting an order for a protected action ballot. The application pertains to certain employees of NSW Electricity Network Operations Pty Limited as Trustee for NSW Electricity Networks Operations Trust trading as Transgrid. Notably, another union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, has made a separate application for a protected action ballot concerning the same proposed agreement.

The primary legal issue before the Commission was whether the conditions stipulated in section 443 of the Act were met to allow for a protected action ballot. This involved verifying that the union had genuinely attempted to reach an agreement with the employer and that the notification period for the proposed agreement was appropriately observed. Additionally, the Commission had to confirm that the ballot would be conducted by an authorised agent, Democratic Outcomes Pty Ltd (CiVS), as per section 468A of the Act.

Upon reviewing the submissions and evidence provided, Deputy President Hampton found that all necessary conditions had been fulfilled. The Employer did not oppose the application, and the union's efforts to reach an agreement were deemed genuine. Consequently, the Commission granted the order, specifying that the ballot would close on 29 May 2024. This decision also established the ballot period for any subsequent compulsory conciliation conference under section 448A of the Act. The matter will be reassigned to another Commission member to handle the conciliation conference and related negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established