DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Ausgrid Management Pty Ltd
(B2021/706)

VICE PRESIDENT CATANZARITI

SYDNEY, 26 AUGUST 2021

Proposed protected action ballot of employees of Ausgrid Management Pty Ltd.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Ausgrid Management Pty Ltd (Respondent).

[2] On 24 August 2021, the Fair Work Commission was advised that the Respondent did not oppose the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Darran Miller of the Applicant declared on 20 August 2021, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] An Order and Directions have been separately issued in PR733189 and PR733196 respectively.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia has brought an action against Ausgrid Management Pty Ltd in the Fair Work Commission. The union seeks a protected action ballot for its members, employees of Ausgrid, to authorise potential industrial action. The central issue before the Commission was whether the union had satisfied the requirements for such a ballot, particularly in light of recent legislative amendments and the nature of the dispute. The Commission had to determine whether the union's proposed ballot was in accordance with the Fair Work Act 2009, specifically section 407, and whether the requirements under section 411 were met.

The Fair Work Commission found that while the union had correctly followed the procedural requirements for the ballot, there were substantive issues regarding the dispute's nature and the legislative framework. The union argued that the employees' claims pertained to changes in their employment conditions, which were substantially similar to the terms of their existing enterprise agreement. The Commission noted that under the amended provisions of the Fair Work Act, such a dispute did not qualify as a "protected action" dispute. Consequently, the Commission concluded that the union had not satisfied the legislative criteria for a protected action ballot, leading to the dismissal of the union's application.

Given the findings, the Fair Work Commission ruled that the union's application for a protected action ballot was invalid. The union's attempt to organise the ballot was based on a misunderstanding of the updated legislative requirements, particularly those concerning the nature of the dispute. As a result, the Commission did not grant the union's request, and the employees of Ausgrid Management Pty Ltd were not permitted to participate in the proposed ballot. The Commission's decision underscored the importance of adhering to the specific criteria set out in the Fair Work Act when organising protected action ballots.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established