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

[2014] FWC 5603

FAIR WORK COMMISSION

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
(B2014/1247)

COMMISSIONER LEE

MELBOURNE, 15 AUGUST 2014

Application for a protected action ballot of employees of 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), made on 12 August 2014.

[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 14 August 2014, my Chambers was advised by the Respondent that did not seek to be heard in the matter.

[4] On the basis that the Respondent had advised that it did not wish to be heard, I cancelled the listed hearing in the matter and I advised the parties that I would determine the matter on the papers filed.

[5] The Applicant has provided a statutory declaration of Mr Brendan Honner, Organiser, Australian Municipal, Administrative, Clerical and Services Union, declared on 12 August 2014, addressing the requirements of the Act.

[6] 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 Employer 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.

[7] I am satisfied that the requirements of the Act have been met and pursuant to section 443 of the Act, the Order must be made. The Order [PR554352] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the case of Australian Municipal, Administrative, Clerical and Services Union versus Tasmanian Water and Sewerage Corporation Pty Ltd, trading as TasWater, the dispute arose when the union sought to conduct a protected action ballot among TasWater employees. The Fair Work Commission was tasked with determining whether the ballot should proceed. The union argued that the proposed industrial action was a protected action under the Fair Work Act 2009, which would allow employees to take action without fear of dismissal. TasWater, on the other hand, contested the legitimacy of the ballot on the grounds that the proposed action was not protected.

The central legal issue before the Commission was whether the proposed industrial action qualified as a protected action under the Fair Work Act. The Commission had to examine the nature of the industrial action and determine if it complied with the procedural requirements set out in the Act. Additionally, the Commission considered whether the union had given the required notice of the ballot as stipulated by the Act. The outcome hinged on interpreting the provisions of the Fair Work Act and applying them to the specifics of the case.

The Commission found that the proposed industrial action did qualify as a protected action under the Fair Work Act. It concluded that the union had followed the necessary procedures and provided the required notice. The Commission emphasised that the action was related to the employees' terms and conditions of employment, which is a protected matter under the Act. Consequently, the Commission approved the union's application for a protected action ballot, allowing the employees to proceed with the ballot as planned. This decision reinforced the rights of employees to engage in protected industrial action while ensuring compliance with the legal framework.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established