DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2015/744)

Tasmania
COMMISSIONER LEE	MELBOURNE, 23 JULY 2015

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

[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 [PR569670] 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

The matter before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, acting on behalf of certain employees of the Tasmanian Water and Sewerage Corporation trading as TasWater, seeking approval for a proposed protected action ballot. The union aimed to ballot its members regarding potential industrial action in response to disputes over workplace conditions and employment terms. The Tasmanian Water and Sewerage Corporation, represented by its management, opposed the ballot, citing operational disruptions and potential public service impacts.

The central legal issues before the Commission were whether the proposed industrial action fell within the protections afforded under the Fair Work Act 2009 and whether the ballot could proceed without causing undue harm to the public or disrupting essential services. The Commission had to consider the legitimacy of the union's claims, the potential impact on public services, and the procedural fairness in conducting the ballot. Additionally, the Commission assessed whether the proposed action met the statutory requirements for protected industrial action.

In its decision, the Commission examined the evidence provided by both parties, focusing on the nature of the proposed industrial action and its potential impact. The Commission found that the union's claims were legitimate and that the proposed action was likely to cause minimal disruption to essential services. The Commission also determined that the procedural requirements for conducting the ballot were met, and the potential benefits to the employees outweighed the possible harm to the public. Consequently, the Commission approved the union's application for the protected action ballot, subject to specific conditions to mitigate any potential disruptions.

The Fair Work Commission's final orders included approval for the union to conduct the ballot among its members, with the understanding that the action would be taken in a manner that minimised disruption to TasWater's operations. The Commission also imposed conditions to ensure that essential services would be maintained and that the ballot process would be conducted fairly and efficiently. The decision underscored the importance of balancing the rights of employees to engage in protected industrial action with the need to protect public interests and maintain service continuity.

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

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established