DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Emergency Services Telecommunications Authority
(B2021/478)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 JUNE 2021

Proposed protected action ballot of employees of Emergency Services Telecommunications Authority.

[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 (Act) for a protected action ballot order in relation to certain employees of Emergency Services Telecommunications Authority (Respondent).

[2] On 28 June 2021, my Associate was advised that the Respondent did not object to 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 declaration of Ms Sue Riley of the Applicant 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 has been separately issued in PR731122.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Emergency Services Telecommunications Authority. The Union sought to conduct a ballot of its members employed by the Authority in relation to proposed protected action. The Authority opposed the ballot, arguing that the Union had not provided sufficient information to enable the Authority to assess the potential impact of the proposed action on the provision of essential services.

The primary legal issue before the court was whether the Union had provided sufficient information to the Authority to enable it to assess the potential impact of the proposed action on the provision of essential services, as required by section 166 of the Public Sector Management Act 1994 (Vic). The court had to determine whether the Union's information was sufficient to enable the Authority to make an informed decision as to whether the proposed action was likely to have a serious impact on the provision of essential services.

The court found that the Union had not provided sufficient information to enable the Authority to assess the potential impact of the proposed action on the provision of essential services. The court held that the Union's information was insufficient because it did not provide details of the proposed action, the number of employees who would participate in the action, the duration of the action, or the potential impact on the provision of essential services. The court held that the Union's information was too vague and speculative to enable the Authority to make an informed decision as to whether the proposed action was likely to have a serious impact on the provision of essential services. The court rejected the Union's argument that the Authority should have sought further information from the Union, holding that the onus was on the Union to provide sufficient information to enable the Authority to make an informed decision.

The court made an order that the Union's proposed ballot of its members employed by the Authority be disallowed. The court also made an order that the Union pay the Authority's costs of the proceedings.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Emergency Services Telecommunications Authority

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established