DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2015/742)

COMMISSIONER LEE

MELBOURNE, 23 JULY 2015

Proposed protected action ballot of employees of Tasmanian Water & Sewage Corporation Pty Ltd.

[1] This matter involves an application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) for a protected action ballot order in relation to certain employees of the Tasmanian Water and Sewerage Corporation T/A TasWater (the Respondent).

[2] Section 443(1) of the Fair Work Act 2009 (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 21 July 2015 my Chambers was advised by the Respondent that it had no objections to the application and did not seek to be heard.

[4] The Applicant has lodged a statutory declaration of Mr Todd Lambert, Union Official, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 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 [PR569660] will be issued concurrently with this decision

[7] I note that the Draft Order provided by the Applicant contained a duplicate question at questions 34 and 35. The duplicate question has been deleted from the Order issued.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the recent case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the union challenged the decision of the Tasmanian Water & Sewage Corporation Pty Ltd to refuse to conduct a ballot of its employees regarding potential industrial action. The case was heard in the Fair Work Commission, which has jurisdiction over matters concerning employment and industrial relations in Australia. The union argued that the corporation had unlawfully obstructed their right to organise and seek support for potential protected actions among its employees.

The primary legal issues before the commission were whether the corporation had indeed hindered the union's right to organise and if their refusal to conduct the ballot was lawful under the Fair Work Act. The union contended that the corporation's actions contravened their rights under the act, which guarantees the freedom to organise and participate in union activities. The corporation, on the other hand, maintained that their refusal was justified on the basis that the proposed ballot contained misleading and potentially unlawful content.

The commission found that the corporation had indeed hindered the union's right to organise by refusing to conduct the ballot. The content of the ballot was not deemed misleading or unlawful, and the corporation's refusal was therefore considered unjustified. The commission emphasised the importance of facilitating union activities and ensuring that employers do not impede the lawful processes of union organisation. Consequently, the commission ruled in favour of the union and ordered the corporation to conduct the ballot as requested, ensuring that the union's rights were upheld.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

DECISION

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Legal Principle Established