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

[2025] FWC 1193

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Municipal, Administrative, Clerical and Services Union

Powercor Australia Ltd and Citipower Pty Ltd

(B2025/676)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 30 APRIL 2025

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 (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 Powercor Australia Ltd and Citipower Pty Ltd (the Employers). The Commission understands that the Employers are related businesses and that the parties are seeking to negotiate an enterprise agreement that presently applies to both entities and the ASU.

On 29 April 2025, the Commission was advised that the Employers, in effect, did not object to the Application, as amended.

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 Jonathan Smallbone, ASU Organiser, setting out the steps taken by the ASU in bargaining with the Employers and that it has been, and is, genuinely trying to reach agreement with them, 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 the Australian Electoral Commission (AEC). The AEC has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

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 12 June 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR786534.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives 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] This is, in effect, 30 working days from the making of the Order, which is the minimum period required by the AEC.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union (ASU) sought an order from the Fair Work Commission (FWC) to hold a ballot for a protected action in relation to certain employees of Powercor Australia Ltd and Citipower Pty Ltd, both of which are involved in negotiations for an enterprise agreement. The employers did not object to the application, and the FWC decided to determine the matter based on the submitted documents without holding a hearing. The ASU's application was to comply with the Fair Work Act 2009, and the FWC concluded that all necessary requirements had been fulfilled.

The legal issues before the FWC included whether the ASU had genuinely attempted to negotiate in good faith and if the proposed ballot met the statutory requirements. The ASU submitted a declaration from its Organiser, outlining the steps taken to negotiate with the employers and asserting that they had been genuinely trying to reach an agreement. The FWC reviewed the provided material and was satisfied that the ASU had indeed been negotiating in good faith. The Commission also confirmed that the Australian Electoral Commission was approved to conduct the ballot and set the closing date for the ballot as 12 June 2025.

The FWC determined that the ballot would proceed and ordered that it be conducted by the Australian Electoral Commission, with a closing date of 12 June 2025. The FWC also determined that a compulsory conciliation conference would be held to facilitate further negotiations between the parties. This decision ensures that the protected action ballot can proceed under the Fair Work Act, while also providing a mechanism for the parties to continue their negotiations in an attempt to reach a mutually agreeable enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established