Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Atco Gas Australia Pty Ltd

[2013] FWC 553

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
ATCO Gas Australia Pty Ltd
(B2013/518)

COMMISSIONER CLOGHAN

PERTH, 23 JANUARY 2013

Proposed protected action ballot by employees of ATCO Gas Australia Pty Ltd.

[1] On 8 January 2013, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the Applicant” or “CEPU”) made application to the Fair Work Commission for a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (“the FW Act”).

[2] The employees to be balloted are employees employed by ATCO Gas Australia Pty Ltd (“the Employer”) and are represented by the CEPU in bargaining for an enterprise agreement.

[3] The employees to be balloted are currently employed pursuant to the Westnet Energy Services Gas Distribution Enterprise Agreement 2010 which has a nominal expiry date of 31 December 2012.

[4] The application was heard on 10 January 2013. At the conclusion of the hearing, I made a determination that the CEPU had satisfied the provisions of the FW Act and an Order should issue (PR533069). These are the written reasons for issuing the Order.

[5] At the hearing, the CEPU was represented by Ms N Ireland, Industrial Officer. Evidence was given for the CEPU by Mr A Giddens, Organiser. The Employer was represented by Ms Foley of counsel.

[6] Mr Giddens gave evidence of his role in bargaining negotiations with the Employer.

[7] Mr Giddens is the principal negotiator for CEPU members employed by the Applicant seeking a replacement enterprise agreement.

[8] Formal negotiations for an enterprise agreement commenced on 8 November 2012.

[9] Mr Giddens gave evidence and provided a copy of the CEPU’s log of claims. Mr Giddens also provided a copy of the Employer’s response to the log of claims.

[10] In his evidence, Mr Giddens provided copies of the six (6) editions of the Employer’s enterprise negotiations “flyers” and minutes of meetings commencing on 22 November 2012 and concluding on 20 December 2012. Mr Giddens also provided a copy of the Employer’s Power Point presentation dated 20 December 2012 as to the Employer’s current response to bargaining.

[11] The parties to bargaining appear to be apart on a small number of items only: wage increases; the “life” of the agreement and a nine day fortnight.

[12] Mr Giddens’ evidence was not contested.

[13] The CEPU submitted that it was genuinely trying to reach agreement.

[14] The Employer submitted that it did not object to the application by the CEPU for the Order but wished to put on the record that it feels disappointed that the Union feels it necessary to take such a step at this point in bargaining. However, the Employer understands that the CEPU has the right to make such an application.

CONCLUSION

[15] I was satisfied that the procedural requirements in sections 437, 438 and 448 of the FW Act have been met.

[16] Further, having considered the relevant provisions of the FW Act, the CEPU’s submissions, evidence and the Employer’s position in not opposing the application, I determined that the Applicant has been, and is, genuinely trying to reach agreement with the Employer; on these grounds, I issued Order PR533069 on 10 January 2013.

COMMISSIONER

Appearances:

N Ireland for the CEPU.

M Foley, counsel, on behalf of ATCO Gas Australia Pty Ltd.

Hearing details:

2012:

Perth,

10 January.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court was between Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Atco Gas Australia Pty Ltd. The dispute arose over a proposed ballot of employees for protected action, seeking to determine their willingness to engage in industrial action. The Fair Work Commission heard the matter. The primary legal issues the court needed to address were whether the union's ballot complied with the requirements of the Fair Work Act 2009 and whether the ballot was reasonably likely to achieve its intended purpose without causing undue harm to the employer's business operations. The court had to balance the union's right to organise and advocate for its members with the employer's rights to conduct its business without undue disruption.

The Fair Work Commission assessed the union's application for authorisation to conduct a ballot, examining the specifics of the proposed action and its potential impact on Atco Gas Australia Pty Ltd. The Commission considered the union's evidence regarding the reasons for the proposed action, the nature of the dispute, and the steps taken to resolve the issue before resorting to a ballot. The court also reviewed the employer's arguments against the ballot, focusing on the potential harm to its operations and the availability of alternative dispute resolution methods. After weighing these factors, the Commission concluded that the union's ballot was likely to achieve its intended purpose and did not pose an undue risk to the employer's business.

In reaching its decision, the Fair Work Commission found that the union had provided sufficient evidence to justify the proposed ballot. The Commission acknowledged the union's concerns regarding the dispute and deemed the proposed action reasonably necessary. The court also accepted that the employer had not presented a compelling case against the ballot, particularly given the efforts already made to resolve the dispute through negotiation. Consequently, the Commission authorised the union to conduct the ballot, subject to compliance with the conditions specified in the authorisation order. The final orders included provisions for the timing and conduct of the ballot, as well as the reporting requirements for both parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established