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

[2023] FWC 608

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

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

EnergyAustralia NSW Pty Ltd

(B2023/228)

VICE PRESIDENT CATANZARITI

SYDNEY, 15 MARCH 2023

Proposed protected action ballot of employees of EnergyAustralia NSW Pty Ltd

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 EnergyAustralia NSW Pty Ltd (Respondent).

On 14 March 2023, the Fair Work Commission was advised that the Respondent did not oppose the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Bradley McDougall of the Applicant declared on 9 March 2023, 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.

An Order has been separately issued in PR760276.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, seeking to conduct a protected action ballot among certain employees of EnergyAustralia NSW Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, with the union aiming to secure a ballot order for the proposed industrial action. EnergyAustralia NSW Pty Ltd did not oppose the application, leading to the Vice President determining the matter based on the submitted documents without the need for a hearing.

The primary legal issues before the Commission involved verifying whether the union had genuinely attempted to reach an agreement with the employer and if the statutory notification period for the proposed agreement had been met. The union's statutory declaration, along with other evidence, played a critical role in establishing these facts. The Commission had to assess whether the union's actions were consistent with the requirements outlined in section 443(1) of the Act, which pertains to the conditions necessary for a protected action ballot.

The Vice President concluded that the union had indeed been genuinely attempting to reach an agreement with EnergyAustralia NSW Pty Ltd and that the statutory notification requirements had been fulfilled. Consequently, the Commission decided to grant the union's application for a protected action ballot. The decision was based on the evidence provided and the absence of any opposition from the employer.

The Commission issued an order permitting the union to proceed with the ballot, as detailed in PR760276, thus allowing the union to formally consult its members about the proposed industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established