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

[2021] FWC 3023

[2021] FWC 3023

FAIR WORK COMMISSION

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 Management Pty Ltd
(B2021/357)

COMMISSIONER CAMBRIDGE SYDNEY, 4 JUNE 2021

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

[1] On 24 May 2021, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), made an application for a Protected Action Ballot Order (PABO). The application was made pursuant to section 437 of the Fair Work Act 2009 (the Act). The application was made in respect of members of the CEPU who are employees of Ausgrid Management Pty Ltd (the employer) whose employment is to be regulated by a proposed agreement to replace the Ausgrid Enterprise Agreement 2018.

[2] The application seeks a ballot of employees of the employer who are members of the CEPU who would be covered by a proposed enterprise agreement. The application was supplemented with the Statutory Declaration of Darran Miller (the Statutory Declaration) dated 24 May 2021. In summary, the Statutory Declaration provided information about events involving attempts made by the CEPU to reach agreement with the employer on the terms of a proposed enterprise agreement.

[3] The Fair Work Commission (the Commission) received correspondence dated 26 May 2021, from lawyers acting for the employer advising that the employer opposed the application for a PABO. Consequently, the application has been the subject of a Hearing before the Commission held at Sydney on 28 May 2021, and today, 4 June 2021, at which time the following appearances were recorded:

Mr P Boncardo, Counselappearedfor CEPU;

Mr A Morris from Ashurst Australia appeared for the employer.

[4] The determination of this matter is primarily governed by the provisions of section 443 of the Act. Section 443 is in the following terms:

“443 When the FWC must make a protected action ballot order

(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;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(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.”

[5] At the Hearing, it became apparent that the most significant matter of contest between the Parties involved the period of written notice for the taking of industrial action that was to be specified in the PABO. The draft PABO provided by the CEPU did not include an indication that the period of 3 working days’ written notice prescribed by subsection 414(2) of the Act, should be extended pursuant to subsection 443(5) of the Act, and this issue was the subject of contest raised by the employer.

[6] Mr Morris, who appeared on behalf of the employer, advanced an argument seeking to have the Commission provide for an extension of the written notice referred to in section 414 (2) (a) of the Act, from 3 working days to 7 working days. It was submitted that the Commission should be satisfied that there were exceptional circumstances which would justify extending the notice period for the taking of any protected industrial action.

[7] Mr Morris introduced evidence in the form of a witness statement of Sam Sofi, the employer’s Executive General Manager - Field Operations, which supported the basis upon which the employer sought to have the written notice period for the taking of industrial action extended to 7 working days. In summary, it was submitted that, in this instance, the exceptional circumstances related to the essential public services functions performed by the employer, and the potential implications for the health and safety of the customers of the employer and the general public within the employer’s supply area, all of whom were reliant upon the ongoing provision of electricity supply which may be disrupted by the taking of any industrial action.

[8] Mr Boncardo who appeared for the CEPU, opposed the extension to the notice period as was sought by the employer. Mr Boncardo introduced evidence in the form of witness statements of Robert King, Peter Kramel, Graeme Paterson and a further witness statement of Darran Miller which supported the proposition that a period of 3 working days would provide sufficient time for the employer to implement contingency arrangements to deal with any impacts that would arise from the taking of any industrial action. It was submitted that the capacity for contingency arrangements to deal with any impacts arising from industrial action meant that, in this instance, the Commission should not be satisfied that exceptional circumstances existed, and therefore, there was no basis upon which to extend the written notice period for the taking of industrial action.

[9] Having regard for the evidence provided, and the respective, competing submissions of the Parties, the Commission has been persuaded that exceptional circumstances exist in satisfaction of the requirements of subsection 443 (5) of the Act, justifying the extension to the notice period for taking industrial action. In particular, in this instance, the Commission has been cognisant of the potential health and safety implications that may be created for customers of the employer and the general public who rely upon the ongoing provision of electrical supply within the employer’s supply area. The employer unambiguously provides an essential public service in the form of electrical supply to a significant customer area encompassing a large part of Sydney including the Sydney CBD, Newcastle, and the NSW Central Coast.

[10] However, exceptional circumstances in satisfaction of subsection 443 (5) of the Act, has only been established in respect to the forms of industrial action specified in questions 1 to 20 inclusive of the PABO, and it has not been established in respect to the forms of industrial action specified in questions 21 to 27 inclusive of the PABO. Consequently, the period of written notice for the taking of industrial action will be extended to 7 working days for any form of industrial action taken pursuant to questions 1 to 20 inclusive, and the written notice for the taking of any industrial action that is confined to that specified in questions 21 to 27 inclusive shall be 3 working days.

[11] Further, the Commission is satisfied that the application has been made in accordance with section 437 of the Act. Further, the Commission is satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In addition, the Commission is satisfied that the requirements of sections 438 and 440 of the Act have also been met.

[12] Therefore, pursuant to subsection 443(1) of the Act, the Commission must make a Protected Action Ballot Order. The Order shall be made in the terms as broadly sought by the CEPU. Accordingly, an Order [PR730181] shall be issued separately.

COMMISSIONER

Appearances:

Mr P Boncardo, Counsel with Mr A Jacka from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia appeared for the Applicant.

Mr A Morris of Ashurst Australiaappeared for the employer.

Hearing details:

2021.
Sydney:
May, 28.
June, 4.

Printed by authority of the Commonwealth Government Printer

<PR730179>