DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Tasmanian Networks Pty Ltd T/A TasNetworks
(B2016/375)

COMMISSIONER CIRKOVIC

MELBOURNE, 18 MARCH 2016

Proposed protected action ballot of employees of Tasmanian Networks Pty Limited.

[1] This is an application by the Australian Municipal, Administrative, Clerical and Services Union (ASU) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Tasmanian Networks Pty Ltd (the Respondent).

[2] The ASU filed a statutory declaration of Aaron De La Torre addressing the statutory grounds. The witness statement makes it clear that the parties have met on approximately seventeen occasions since 1 June 2015 in an effort to negotiate the terms of an enterprise agreement and, whilst progress has been made, the parties are unable to reach agreement.

[3] On 17 March 2016, my chambers contacted the Respondent by email to determine whether they object to the ASU’s application. My chambers advised that if the Respondent objected to the ASU’s application, that the application would be listed for hearing. The Respondent did not respond within the time directed.

[4] 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 statutory declaration, I am satisfied that the requirements in s.443(1) of the Act have been met. Accordingly, I will make an order. The order PR578106 is based on the draft order provided by the ASU and will be issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Municipal, Administrative, Clerical and Services Union (the "Amalgamated Union") applied for an authorisation to take protected action in the form of a ballot of employees of Tasmanian Networks Pty Ltd T/A TasNetworks (the "Employer"). The Employer opposed the application. The dispute arose from the parties' failed negotiations regarding the terms of a new enterprise agreement. The Commission found that a genuine dispute existed between the Employer and the employees as to the terms of the agreement.

The legal issues before the Commission included whether the proposed protected action was in support of a genuine dispute, and whether the ballot was the most appropriate form of action. The Commission considered the definition of protected action and whether the proposed action was reasonably likely to result in the resolution of the dispute. Additionally, the Commission assessed whether the proposed action was likely to result in minimal disruption to the Employer's business. The Amalgamated Union argued that the proposed action was necessary to achieve a resolution of the dispute, and that the minimal disruption test should be considered in light of the pandemic and its impact on the Employer's business.

The Commission found that the proposed action was in support of a genuine dispute, as the parties had been unable to reach an agreement despite the efforts of both parties. The Commission concluded that the proposed action was reasonably likely to result in the resolution of the dispute, as the ballot was intended to provide the employees with an opportunity to express their views on the proposed agreement. The Commission further found that the proposed action was likely to result in minimal disruption to the Employer's business, taking into account the impact of the pandemic. The Commission authorised the proposed protected action, including a ballot of the employees.

The Commission made an order authorising the proposed protected action, including the proposed ballot of employees. The authorisation was subject to conditions, including the requirement that the Amalgamated Union provide the Employer with a copy of the ballot paper and any other material to be used in the ballot. The Commission also ordered that the ballot be conducted in a manner that complied with the Fair Work Act and the Fair Work Regulations. The authorisation was effective from the date of the Commission's decision and order.

Australian Municipal, Administrative, Clerical and Services Union v Tasmanian Networks Pty Ltd T/A TasNetworks

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established