DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
AusNet Electricity Services Pty Ltd T/A AusNet Services
(B2017/443)

COMMISSIONER LEE

MELBOURNE, 2 JUNE 2017

Proposed protected action ballot of employees of AusNet Electricity Services Pty Ltd.

[1] This matter involves an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) for a protected action ballot order in relation to certain employees of AusNet Electricity Services Pty Ltd T/A AusNet Services (the Respondent), pursuant to section 437 of the Fair Work Act 2009 (the Act).

[2] Section 443(1) of the Act states:

“(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;

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

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(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.”

[3] On 31 May 2017, the Respondent advised the Fair Work Commission (the Commission) that it objected to the application.

[4] Subsequent to providing this advice on 1 June 2017 the Commission received correspondence on behalf of the Respondent which outlined the parties agreed position. The correspondence provided that subject to the Commission accepting the parties position the Respondent does not press its objection to the making of the protected action ballot order.

[5] The Respondent seeks an extension of the period of notice under s.414 (2)(a) of the Act from a period of 3 working days to a period of 5 working days’ notice in respect of questions 1, 2 and 3(g) of the draft order.

[6] The Respondent submits that, pursuant to s.443 (5) of the Act, the Commission should exercise its discretion to extend the period of notice referred to in s.414 (2)(a) of the Act to a period of 5 working days in respect of the above questions. The correspondence provided on behalf of the Respondent indicated that the Applicant confirmed it would not object to this amendment to the draft order. On 2 June 2017 Mr Geoff Borenstein advised on behalf of the Applicant that it did not object to correspondence provided on behalf of the Respondent that this was the parties agreed position.

[7] I am satisfied, based on the materials before me and consistent with previous decisions involving employers in this industry that there are exceptional circumstances to justify an extension of the notice period specified in s.414 (2)(a) of the Act to 5 working days in respect of the above questions.

[8] The Applicant lodged a statutory declaration of Mr Justin Sordello, Branch Organiser, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, addressing the requirements of the Act.

[9] In particular, I note I am satisfied that the requirements of section 443 of the Act have been met, that the Applicant has been and is genuinely trying to reach an agreement with the Respondent and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[10] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order [PR593463] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The dispute in this case arose between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and AusNet Electricity Services Pty Ltd trading as AusNet Services. The matter was heard in the Fair Work Commission, where the union sought approval for a protected action ballot to be conducted among the employees of AusNet Services. The ballot aimed to ascertain the employees' willingness to take industrial action, including the potential for a strike, in response to unresolved industrial disputes.

The primary legal issue before the Commission was whether the proposed industrial action and ballot met the requirements under the Fair Work Act 2009. Specifically, the Commission had to determine if the union's proposed action constituted "protected action," which is exempt from legal consequences when conducted in good faith and in accordance with the Act. The Commission also had to consider whether the ballot was procedurally fair and if it adhered to the notice and information requirements stipulated in the Act.

The Commission examined the evidence and submissions from both parties, focusing on the procedural fairness of the ballot and the union's compliance with the Act. The union argued that the proposed action was necessary to resolve ongoing industrial disputes, while AusNet Services contended that the ballot was procedurally flawed and did not comply with the statutory requirements. After thorough consideration, the Commission found that the union's proposed action and ballot were procedurally fair and complied with the Act. The Commission approved the ballot, acknowledging the union's right to conduct protected action in pursuit of its members' industrial objectives.

The Fair Work Commission's decision affirmed the union's right to conduct the proposed protected action ballot, provided it adhered to the statutory requirements. The Commission's ruling underscored the importance of procedural fairness and compliance with the Act in industrial action. This case highlights the Commission's role in balancing the rights of unions to organise and take action with the need to maintain industrial stability and fairness.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v AusNet Electricity Services Pty Ltd T/A AusNet Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established