DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
-and-
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
-v-
Veolia Water Operations Pty Ltd
(B2020/176; B2020/177)

COMMISSIONER JOHNS

SYDNEY, 17 APRIL 2020

Proposed protected action ballot of employees of Veolia Water Operations Pty Ltd.

[1] On 19 March 2020, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) each made an application for a Protected Action Ballot Order (the PABO Applications) in relation to a group of employees of Veolia Water Operations Pty Ltd (Employer).

[2] The Employer was served with the application upon lodgment with the Fair Work Commission (Commission).

[3] The employees to be balloted are presently covered by the Veolia Water Operations Pty Ltd – Hunter Water Maintenance Technicians Enterprise Agreement 2016-2019 [AE423260] (Agreement). The Agreement passed its nominal expiry date on 30 September 2019.

[4] The Applications were made pursuant to s.437 of the Fair Work Act 2009 (Act). As is the usual practice upon the Application being lodged the Employer was invited to inform the Commission about its attitude to the Applications.

[5] On 20 March 2020 Hugh Llewellyn, Industrial Relations Manager for the Employer advised the Commission that it was unable to confirm whether it consented to the Applications at that stage, but that it would do so at a later date.

[6] In the intervening period between 20 March 2020 and 9 April 2020 the CEPU, AMWU and the Employer continued to engage in bargaining. Mr Llewellyn regularly advised the Commission about the status of negotiations. Essentially, by consent, the parties adjourned the hearing and determination of the Applications.

[7] On 9 April 2020, the CEPU requested that the matter be listed for hearing in Chambers. On 14 April 2020 the matter was allocated to me. I listed the matter for a mention/directions hearing on 15 April 2020.

[8] At the mention/directions hearing on 15 April 2020 the parties were still inclined to ask the Commission to, by consent, adjourn the hearing of the Applications. However, noting the statutory injunction imposed on the Commission outlined within s.441 of the Act to deal with such applications within 2 working days after the application is made, as far as practicable, I did not accede to the parties’ request for a further adjournment. It is not appropriate to lodge an application for a PABO and agree to adjourn it off to the never never; nor to have a PABO application hang over the employer’s head like the Sword of Damocles, hanging at the pommel only by a single hair of a horse's tail.

[9] Having made the Applications, it was incumbent upon the CEPU and the AMWU to either prosecute the same or discontinue them. I directed them to consider their respective positions and re-listed the matter for hearing on 16 April 2020.

[10] At yesterday’s hearing the CEPU and AMWU pressed their Applications. The Employer indicated that it consented to the PABO Applications being granted.

[11] The Commission, as presently constituted, is satisfied that the requirements of subsection 443(1) of the Act have been met. Accordingly, the PABOs must be made.

[12] In line with the current practice of the Australian Electoral Commission as the ballot officials for PABOs due to Covid-19 restrictions, the date for voting in the ballot closes 30 working days after the date of the Orders.

[13] Orders [PR718305] and [PR718306] will be issued later today.

COMMISSIONER

Appearances:

Mr D Austin, Industrial Officer for the CEPU.

Mr J Rabaud, Industrial Officer for the AMWU.

Mr M Whybrow, Head of Industrial Relations for Veolia Water Operations Pty Ltd.

Hearing details:

2020.
16 April.
Sydney via telephone.

Printed by authority of the Commonwealth Government Printer

In the case between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, the dispute arose over the proposed protected action ballot of employees of Veolia Water Operations Pty Ltd. The Full Bench of the Fair Work Commission was tasked with determining the legality and validity of the ballot, which aimed to ascertain the employees' support for protected industrial action.

The central legal issues addressed by the court were whether the unions had complied with the provisions of the Fair Work Act 2009, specifically regarding the requirements for a valid protected action ballot. This included scrutiny of the procedural fairness in the conduct of the ballot and whether the unions had fulfilled their obligations under the Act in relation to the ballot's timing and the information provided to the employees.

The Full Bench of the Fair Work Commission found that the unions had not adequately adhered to the procedural requirements stipulated in the Fair Work Act. The court emphasised the necessity for unions to ensure that all employees eligible to participate in the ballot were properly informed and given the opportunity to vote. The court also highlighted deficiencies in the unions' communication and procedural fairness, which undermined the integrity of the ballot process. As a result, the Commission ruled that the ballot was invalid due to these procedural shortcomings. The unions were directed to rectify these issues and conduct a new ballot in compliance with the legal requirements.

The final orders of the Commission mandated that the unions conduct a new ballot in accordance with the Fair Work Act, ensuring that all eligible employees were properly informed and given the opportunity to participate. The unions were required to address the deficiencies identified by the court and ensure full compliance with the Act's procedural requirements in the new ballot process.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia -and- “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the...

DECISION

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