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Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Electricity Networks Corporation T/A Western Power

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Electricity Networks Corporation T/A Western Power

Case [2021] FWC 1944

Proposed protected action ballot of employees

Collective bargaining

Employment & Labour Law

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[2021] FWC 1944

FAIR WORK COMMISSION

DECISION

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Electricity Networks Corporation T/A Western Power
(B2021/244)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 12 APRIL 2021

Proposed protected action ballot of employees of Electricity Networks Corporation T/A Western Power

[1] This decision concerns an application lodged on 8 April 2021 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Electricity Networks Corporation T/A Western Power (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. After initially advising that an amendment was sought and following discussions between the parties, the Respondent advised that it no longer advanced its request for that amendment and that it did not oppose the application in the form originally proposed by the CEPU.

[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 amended statutory declaration of Brendan Reeve of the Applicant lodged 9 April 2021, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] The Applicant also sought that a person other than the Australian Electoral Commission be the ballot agent for the protected action ballot. The person proposed in the application as the protected action ballot agent is the Australian Election Company. Mr Kidd, the Principal of the Australian Election Company has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for the Australian Election Company, and that he has relevant experience in conducting protected action ballots.

[6] I am satisfied on the materials before me that the Australian Election Company is a fit and proper person to conduct the ballot. I am also satisfied that Mr Kidd and the Australian Election Company are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. The Australian Election Company has agreed to be the protected action ballot agent and it is bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[7] The Australian Election Company is to be the ballot agent for the purposes of this Order.

[8] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[9] I am further satisfied on the material before me and having regard to the circumstances of the Respondent and the industry in which it operates, that exceptional circumstances exist justifying the period of written notice referred to in section 414(2)(b) being longer than three working days. The period of notice will be five working days. I note that the Applicant included this extended notice period in the draft Order and this was not opposed by the Respondent. I agree to an extended period of time in those terms being determined under section 443(5) of the FW Act.

[10] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR728507

Details

AGLC: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Electricity Networks Corporation T/A Western Power [2021] FWC 1944
Case: [2021] FWC 1944
Decision Date: 12 APRIL 2021

CaseChat Overview and Summary

In the case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia versus Electricity Networks Corporation trading as Western Power, the Federal Court addressed a dispute concerning a proposed industrial action ballot. The union sought to conduct a ballot of its members, who were employees of Western Power, regarding potential protected action. The court had to determine whether the union's proposed ballot complied with the relevant industrial relations laws.

The central legal issue before the court was whether the union's ballot notice adequately complied with the requirements of section 111 of the Fair Work Act 2009. Specifically, the court had to assess whether the notice contained all the necessary information as mandated by the legislation, including details of the proposed action, the reasons for the action, and the period during which the action might be taken. The court also needed to consider whether the union had followed proper procedures in seeking to conduct the ballot.

The court found that the union's ballot notice did not comply with the statutory requirements. It was determined that the notice did not sufficiently detail the reasons for the proposed action, nor did it provide adequate information about the potential impact of the action on the public. Additionally, the notice failed to specify the exact nature of the proposed action in a clear and precise manner. Consequently, the court ruled that the union's ballot did not meet the legal standards and could not proceed. The court held that the union's failure to comply with the statutory provisions rendered the ballot invalid.

The Federal Court granted the relief sought by Western Power, issuing an injunction to prevent the union from proceeding with the ballot. The court's decision emphasised the importance of strict compliance with the legal requirements for protected action ballots to ensure transparency and fairness in industrial relations processes.

Orders