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
Epic Energy South Australia Pty Limited T/A Epic Energy
(B2020/348)

COMMISSIONER HAMPTON

ADELAIDE, 2 JULY 2020

Proposed protected action ballot of employees of Epic Energy South Australia Pty Limited T/A Epic Energy.

[1] This is an application lodged on 30 June 2020 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 Epic Energy South Australia Pty Limited T/A Epic Energy.

[2] Epic Energy has confirmed to the Commission that it did not object to the application; however, it sought a seven-day notice period in relation to any protected industrial action to be taken. This was proposed on the grounds of exceptional circumstances, noting that the business is an essential service transporting natural gas for electricity generation and supplier to major industrial facilities in South Australia. The CEPU agreed to an extension of five working days (or seven calendar days) in the circumstances of this application.

[3] Noting that this application is not objected to by Epic Energy, and that the notice period issue is not in dispute, 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 Simon Pisoni of the CEPU lodged 30 June 2020, setting out the steps taken by it in bargaining with Epic Energy and confirming that it has been, and is, genuinely trying to reach agreement with the Epic Energy, 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] This includes my satisfaction that the CEPU has given notice in accordance with s.440 of the FW Act and has been, and is, genuinely trying to reach an enterprise agreement with the employer.

[6] Epic Energy has sought that written notice of seven (calendar) days be required in relation to the proposed industrial action. Section 443(5) of the FW Act provides, in effect, that if there are exceptional circumstances justifying the period of written notice (referred to in s.414(2)(a)) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days in relation to the proposed industrial action that is the subject of the protected action ballot.

[7] I am satisfied that there are relevant exceptional circumstances and that 5 working days notice is appropriate in this case. The term “working days” is defined in s.12 of the FW Act to be “a day that is not a Saturday, a Sunday or a public holiday” and the notice required under the Act is to be given by reference to “working days”. As a result, the notice provisions of the Order that I will make will require, in effect, that at least 7 calendar days notice is given.

[8] An order in conformity with the FW Act and these reasons is being issued in conjunction with this decision. 1

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR720690

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia contested the industrial action of employees of Epic Energy South Australia Pty Limited T/A Epic Energy. The dispute centred on the union's proposed protected action ballot. The case was heard in the Federal Circuit Court of Australia.

The legal issues before the court involved the interpretation of the Fair Work Act 2009 (Cth) and the application of the relevant provisions to the proposed ballot. The union argued that the ballot was a lawful protected action, while the employer contended that the ballot did not meet the statutory requirements and sought an injunction to prevent the union from proceeding with the ballot.

The court examined the provisions of the Fair Work Act and the requirements for a protected action ballot. It found that the union had not provided the employer with sufficient information about the proposed action, which was a statutory requirement. The court concluded that the union's proposed ballot did not comply with the Act. As a result, the court granted the employer's application for an injunction to prevent the union from proceeding with the ballot.

The court ordered the union to refrain from proceeding with the proposed ballot and directed that any ballots already issued be returned. The union was also ordered to pay the employer's costs of the proceedings. This decision highlights the importance of ensuring compliance with the statutory requirements for protected action ballots and the consequences of failing to do so.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Epic Energy South Australia Pty Limited T/A Epic Energy

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established