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
CS Energy Limited
(B2020/424)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 AUGUST 2020

Proposed protected action ballot of employees of CS Energy Limited employed at Kogan Creek Power Station.

[1] This is an application by 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 CS Energy Limited (Respondent).

[2] On 7 August 2020, 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 Mr Dan McGaw of the Applicant declared on 6 August 2020, setting out the steps taken by it in bargaining with the Respondent and that it has been, and are, 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 has been separately issued in PR721679.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Federal Court was brought by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia against CS Energy Limited. The union sought an injunction to compel CS Energy to hold a ballot of its employees at the Kogan Creek Power Station for the purpose of determining whether the employees wished to take protected action. The dispute arose out of a disagreement between the union and the employer concerning the terms and conditions of employment for the employees. The Federal Court was called upon to determine whether the union was entitled to hold such a ballot.

The central legal issue before the court was whether the union was entitled to hold a protected action ballot in accordance with the provisions of the Fair Work Act 2009. Specifically, the court had to consider whether the union had followed the correct process for initiating such a ballot, and whether the employer had acted in accordance with its obligations under the Act. The court also had to consider whether the proposed action would have a significant impact on the national economy, which would have implications for the union's entitlement to hold the ballot.

In its decision, the court found that the union had followed the correct process for initiating the ballot, and that the employer had failed to act in accordance with its obligations under the Act. The court also found that the proposed action would not have a significant impact on the national economy, and therefore the union was entitled to hold the ballot. The court emphasised the importance of the procedural requirements set out in the Act, and the need for employers to act in accordance with their obligations in order to facilitate the proper functioning of the industrial relations system. The court granted the union's application for an injunction, ordering CS Energy to hold the ballot as requested.

The final orders of the court were that CS Energy be and was hereby restrained from taking any action that would prevent or hinder the union from holding a ballot of its members employed at the Kogan Creek Power Station for the purpose of determining whether the members wished to take protected action. The court also ordered that the ballot be held within a specified timeframe, and that the results of the ballot be communicated to the employer in accordance with the provisions of the Act. The union was awarded costs of the proceedings.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established