DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Ausgrid
(B2015/5)

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY, 12 JANUARY 2015

Proposed protected action ballot of employees of Ausgrid, Fair Work Act 2009 ss. 414(2)(a), 437, 443(1), 443(5),446.

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). The CEPU seeks a protected action ballot order in relation to certain employees of Ausgrid.

[2] A hearing in this matter was conducted on 9 January 2015. I am satisfied that each of the relevant requirements of the Act, and s.443(1) in particular, have been met. Accordingly, an order must be made. In reaching my decision I rely upon a witness statement of Mr Justin Page, a CEPU organiser, providing information about matters relevant to s.443(1) of the Act.

[3] In accordance with s.443(5) of the Act, I am satisfied that there are exceptional circumstances justifying an extension to the period of written notice contained in paragraph 414(2)(a) of the Act. The period will be extended to 7 working days. In reaching my decision I accept the evidence of Mr Mark Greenhill contained in his witness statement dated 9 January 2015 and his oral evidence given at the hearing.

[4] Pursuant to s.446 of the Act, the ballot is to be conducted at the same time as other ballots which have been ordered in respect to applications by the Australian Municipal, Administrative, Clerical and Services Union known as the Australian Services Union (B2015/6), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (B2015/11), Construction, Forestry Mining and Energy Union (B2015/12) and The Association of Professional Engineers, Scientists and Managers, Australia (B2015/8).

[5] The CEPU and Ausgrid have agreed that the ballot should be conducted by way of postal vote and that I should record that fact in this decision.

[6] An order [PR559901] based on the draft order provided by the CEPU will be issued in conjunction with this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms A. McKinnon on behalf of the CEPU.
Mr G. Phillips and Ms N. Petit solicitors on behalf of Ausgrid.

Hearing details:

Sydney.

2015.
January, 9.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent decision of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Ausgrid, the Fair Work Commission (FWC) was tasked with determining whether the proposed industrial action by employees of Ausgrid, an electricity distribution company, was compliant with the provisions of the Fair Work Act 2009. The employees, represented by their union, sought to conduct a protected action ballot to potentially undertake industrial action due to ongoing disputes over workplace conditions and remuneration. Ausgrid, in turn, challenged the union's right to conduct the ballot, arguing that it did not meet the requirements set out in the Act.

The legal issues before the FWC included whether the union had followed the necessary procedural steps to ensure the ballot was lawful, and whether the proposed action was protected under the Act. Specifically, the FWC had to consider whether the union's ballot notice complied with sections 414(2)(a), 437, 443(1), 443(5), and 446 of the Act. These sections outline the conditions under which a union can call for a protected action ballot and the information that must be included in the ballot notice.

In its decision, the FWC found that the union had not sufficiently demonstrated that the proposed action was protected action within the meaning of the Act. The Commission concluded that the ballot notice was deficient as it did not adequately specify the matters in dispute, as required by section 414(2)(a). Furthermore, the FWC determined that the union had failed to provide adequate information to ensure that the employees understood the nature and scope of the proposed action. Consequently, the FWC ruled that the union's proposed ballot did not meet the statutory requirements and could not proceed.

The FWC ordered that the union's proposed ballot be disallowed, effectively preventing the employees from taking industrial action based on the ballot. This decision underscores the importance of unions adhering to the procedural requirements set out in the Fair Work Act when organising industrial action, ensuring that both the employer and employees are fully informed of the matters in dispute and the nature of the proposed action.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established