FAIR WORK COMMISSION

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

CaseChat Overview and Summary

In the matter of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the union brought an action in the Federal Court of Australia. The dispute arose from the proposed protected action ballot of employees of Tasmanian Water & Sewage Corporation Pty Ltd, which was to be conducted by the union. The primary legal issue the court had to address was whether the proposed ballot could proceed under the Fair Work Act 2009. The court needed to consider the provisions of the Act regarding protected industrial action and the obligations imposed on unions when conducting ballots.

The court examined the relevant sections of the Fair Work Act, including the requirements for a protected action ballot. The central issue was whether the proposed ballot complied with the procedural and substantive requirements set out in the Act. The court assessed the union's application for authorisation to conduct the ballot and evaluated whether the employees were protected persons within the meaning of the Act. Additionally, the court had to consider whether the proposed action was protected action, as defined in the Act, and if it satisfied the conditions for being protected action.

After reviewing the evidence and submissions from both parties, the court found that the proposed ballot did not comply with the requirements of the Fair Work Act. The court determined that the employees did not meet the criteria to be considered protected persons and that the proposed action did not qualify as protected action. Consequently, the court dismissed the union's application for authorisation to conduct the ballot. The court concluded that the union had not demonstrated that the proposed ballot was in compliance with the statutory requirements for protected industrial action. As a result, the union was not authorised to proceed with the ballot.

The court ordered that the union's application be dismissed, and it refrained from authorising the proposed ballot. The court emphasised the importance of adhering to the statutory framework governing industrial action and highlighted the necessity for unions to ensure that any proposed ballot complies with the Fair Work Act. This decision underscored the legal obligations and procedural requirements that unions must meet when seeking to conduct a ballot for protected action.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established