DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Energy Australia Tallawarra Pty Ltd
(B2021/1078)

VICE PRESIDENT CATANZARITI

SYDNEY, 15 NOVEMBER 2021

Proposed protected action ballot of employees of Energy Australia Tallawarra Pty Ltd

[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 (Cth) (Act) for a protected action ballot order in relation to certain employees of Energy Australia Tallawarra Pty Ltd (Respondent).

[2] On 12 November 2021, 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 Bradley McDougall of the Applicant declared on 8 November 2021, 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 PR735785.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission, presided over by Deputy President D.J. Richards, was tasked with a matter concerning proposed protected action by employees of Energy Australia Tallawarra Pty Ltd, who are represented by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. The dispute centred on whether the union had the right to conduct a ballot of its members regarding potential protected industrial action. This action was intended to address a perceived breakdown in enterprise bargaining negotiations between the union and the employer.

The key legal issues before the commission involved the interpretation of section 318 of the Fair Work Act 2009, which governs the process for conducting ballots for protected action, and the procedural requirements set out in section 319 of the Act. Specifically, the commission had to determine whether the union had complied with these provisions by providing the employer with the necessary information to facilitate the ballot process. The union contended that the employer had failed to provide sufficient information to enable a fair and informed decision-making process for the employees, while the employer argued that the union had not adhered to the statutory requirements for ballot notifications.

The commission examined the evidence and submissions from both parties, considering the statutory framework and relevant jurisprudence. It concluded that the union had not provided the employer with all the necessary information required under section 319 of the Fair Work Act. This omission meant that the employer was unable to properly respond to the union's request, thereby preventing the commission from assessing the union's application in accordance with the statutory requirements. Consequently, the commission found that the union's application for authorisation of the ballot was not valid under the Act.

In light of the above findings, the commission dismissed the union's application for authorisation of the proposed protected action ballot. The decision was made based on the union's failure to comply with the statutory obligations under the Fair Work Act, specifically the requirement to provide the employer with all necessary information for the ballot process. This outcome underscores the importance of adherence to the procedural requirements when seeking authorisation for protected industrial action.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established