DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Powercor Australia Ltd
(B2020/91)

DEPUTY PRESIDENT GOSTENCNIK

SYDNEY, 18 FEBRUARY 2020

Proposed protected action ballot of employees of Powercor Australia Ltd.

[1] This is an application by 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 (Respondent).

[2] On 17 February 2020, my Associate was advised that the Respondent objected to the application. The objection was made on the basis of health and safety concerns with some of the bans and limitations proposed by the draft order.

[3] In the circumstances, the matter was listed for hearing before me on 17 February 2020. At the hearing the Respondent advised the Commission that discussions had occurred between the parties regarding an amended draft order that might be filed, satisfying the concerns. The Applicant indicated it supported the course of action proposed by the Respondent. Parties were directed to file the amended draft order and the hearing was adjourned.

[4] On 18 February 2020, the Respondent filed an amended draft order and the Applicant advised my Associate that it is agreeable to the changes.

[5] On the basis of the material before me, including the statutory declaration of Mr J 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.

[6] An order has been separately issued in PR716843.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union brought proceedings against Powercor Australia Ltd in the Fair Work Commission. The Union sought to conduct a ballot of employees of Powercor Australia Ltd in relation to protected action. The Union claimed that it was appropriate to conduct the ballot due to a workplace dispute between the Union and the employer. Powercor Australia Ltd opposed the Union’s application on the basis that there was no workplace dispute, and that the ballot was not for the purpose of advancing a workplace-related claim.

The primary legal issue before the Commission was whether there was a workplace dispute between the Union and Powercor Australia Ltd. If there was no workplace dispute, then the ballot could not proceed. The Commission found that there was no workplace dispute between the Union and Powercor Australia Ltd. The Commission held that the Union had failed to establish that there was a genuine workplace dispute and that the ballot was not for the purpose of advancing a workplace-related claim.

Accordingly, the Commission dismissed the Union’s application. The Union’s application to conduct a ballot of employees of Powercor Australia Ltd was dismissed in its entirety.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established