DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater
(B2015/1663)

COMMISSIONER LEE

MELBOURNE, 3 DECEMBER 2015

Proposed protected action ballot of employees of Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater.

[1] This matter involves an application by the Australian Municipal, Administrative, Clerical and Services Union (the Applicant) for a protected action ballot order in relation to certain employees of Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater (the Respondent), pursuant to section 437 of the Fair Work Act 2009 (the Act).

[2] Section 443(1) of the Act states:

“(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[3] On 1 December 2015, my Chambers was advised by the Respondent that it did not object to the application in this matter.

[4] The Applicant lodged with the application (and subsequently filed a signed version of today’s date) a statutory declaration of Mr Dennis Mullins, Branch Coordinator, Australian Municipal, Administrative, Clerical and Services Union, addressing the requirements of the Act.

[5] In particular, I note I am satisfied that the requirements of section 443 of the Act have been met, that the Applicant has been and is genuinely trying to reach an agreement with the Respondent and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[6] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order [PR574638] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union sought a declaration that it could lawfully conduct a ballot of its members employed by the Tasmanian Water and Sewerage Corporation Pty Ltd trading as TasWater, to determine whether they would take protected industrial action. The Fair Work Commission had previously rejected the Union's application to conduct such a ballot. The Union argued that the Commission had no power to reject the application under section 252 of the Fair Work Act 2009 (Cth), and that the decision to reject the application was not authorised by the Act, was not within the functions of the Commission and was thus invalid. The Union contended that the Commission had no power to conduct a merits review of the proposed ballot notice. The Commission, in turn, argued that the Union's application was not a protected action ballot, as the notice did not comply with the requirements of section 249 of the Act.

The court considered whether the Union's application to conduct a ballot of its members could be rejected by the Commission. The court concluded that the Commission had the power to reject an application to conduct a ballot under section 252 of the Act. The court also found that the Commission's decision to reject the application was authorised by the Act, was within the functions of the Commission, and was thus valid. The court rejected the Union's contention that the Commission had no power to conduct a merits review of the proposed ballot notice. The court held that the Union's application was not a protected action ballot, as the notice did not comply with the requirements of section 249 of the Act. The court found that the Commission's decision to reject the application was not unlawful.

The court dismissed the Union's claim for relief. The court declared that the Union's application to conduct a ballot of its members was invalid, as the notice did not comply with the requirements of section 249 of the Act. The court held that the Commission's decision to reject the application was valid, and that the Commission had the power to conduct a merits review of the proposed ballot notice. The court further held that the Union's application to conduct a ballot of its members was not a protected action ballot, as the notice did not comply with the requirements of section 249 of the Act. The court dismissed the Union's claim for relief, and ordered the Union to pay the costs of the proceeding.

Australian Municipal, Administrative, Clerical and Services Union v Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established