Australian Municipal, Administrative, Clerical and Services Union v Powercor Australia Ltd

[2022] FWC 2487

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union

Powercor Australia Ltd; CitiPower Pty Ltd

(B2022/1389)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 16 SEPTEMBER 2022

Proposed protected action ballot of employees of Powercor Australia Ltd and CitiPower Pty Ltd.

This is an application by the Australian Municipal, Administrative, Clerical and Services Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Powercor Australia Ltd; CitiPower Pty Ltd (Respondent).

On 15 September 2022, my Associate was advised that the Respondent did not object to the application.

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 Mr Jonathan Smallbone of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An order has been separately issued in PR745890.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union (the Union) lodged an application with the Fair Work Commission under section 437 of the Fair Work Act 2009, seeking an order permitting a protected action ballot of certain employees of Powercor Australia Ltd; CitiPower Pty Ltd (the Employer). The Union sought the order in relation to employees who are covered by an existing enterprise agreement, which is due to expire on 31 December 2022. The Union advised that it has been, and is, genuinely trying to reach agreement with the Employer, but an agreement has not been reached. The Employer did not object to the application.

The key legal issue for the Fair Work Commission to determine was whether the requirements of section 443 of the Fair Work Act had been met. In particular, the Commission needed to determine if there was a notification time in relation to the proposed agreement, and if the Union had met its obligations in relation to bargaining with the Employer. The Commission also needed to determine if it was appropriate to grant the order on the papers, without holding a hearing, given that the Employer did not object to the application.

The Fair Work Commission considered the material before it, including a declaration from Mr Jonathan Smallbone of the Union, setting out the steps taken by the Union in bargaining with the Employer. The Commission was satisfied that the Union had met its obligations in relation to bargaining, and that there was a notification time in relation to the proposed agreement. The Commission also considered that it was appropriate to determine the matter on the papers, without holding a hearing, given that the Employer did not object to the application. The Commission therefore decided to grant the Union's application for a protected action ballot order.

The Fair Work Commission issued an order permitting the Union to conduct a protected action ballot of the relevant employees. The order was made under section 437 of the Fair Work Act, and was issued in accordance with the provisions of section 443 of the Act. The order is effective immediately, and the Union may proceed with the ballot in accordance with the terms of the order.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established