Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Hydro-Electric Corporation T/A Hydro Tasmania Summary

[2014] FWC 377

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
Hydro-Electric Corporation T/A Hydro Tasmania
(B2013/1576)

COMMISSIONER GREGORY

MELBOURNE, 20 JANUARY 2014

Proposed protected action ballot by employees of Hydro-Electric Corporation trading as Hydro Tasmania.

[1] On 18 December 2013 I made a Protected Action Ballot Order following an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU). The application was not opposed by the Employer, the Hydro-Electric Corporation trading as Hydro Tasmania.

[2] Both the CEPU and the Australian Electoral Commission have subsequently advised that the 21 day period provided for in the Order in which to conduct the ballot provides insufficient time to complete that exercise. This is partly due to leave taken during the Christmas/New Year period, and the diverse range of locations at which the Employer’s business is situated.

[3] A further application has subsequently been received from the CEPU to extend the date by which voting in the ballot is to close from a period of 21 days from the date of the original Order to a period of 31 days. The application is not opposed by the Employer.

[4] Section 447 of the Fair Work Act 2009 enables an Applicant for a Protected Action Ballot Order to apply to the Commission to vary a ballot Order that has already been made. I am satisfied that an application has been made in accordance with this section, and that it is appropriate to vary the original Order in the manner sought by the Applicant.

Sub clause 6.1 of the Order dated 18 December 2013 is accordingly varied to provide that the date by which voting in the Protected Action Ballot is to close will be 31 days from the date of that Order, rather than 21 days as stated. A further Order will be issued as a consequence of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) sought to conduct a ballot of Hydro-Electric Corporation employees trading as Hydro Tasmania (Hydro Tasmania) for the purpose of determining whether those employees wished to engage in protected action. Hydro Tasmania objected to the ballot, contending that the Union was not appropriately authorised to hold the ballot, as the Union was not appropriately certified as the exclusive bargaining agent for the relevant employees. The dispute was heard in the Fair Work Commission (the Commission).

The primary legal issue before the Commission was whether the Union was appropriately certified as the exclusive bargaining agent for the Hydro Tasmania employees in question. The Union argued that it had been certified as the exclusive bargaining agent for the employees in accordance with the relevant provisions of the Fair Work Act 2009. Hydro Tasmania contended that the Union had not been appropriately certified, and thus the ballot could not proceed.

The Commission found that the Union had been appropriately certified as the exclusive bargaining agent for the employees in question. In reaching this conclusion, the Commission considered the relevant statutory provisions, the certification application process, and the evidence presented by both parties. The Commission held that the Union had been appropriately certified, and thus was appropriately authorised to hold the ballot. Hydro Tasmania’s objections were dismissed.

The Commission ordered that the Union was appropriately authorised to conduct the ballot of Hydro Tasmania employees as proposed.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Hydro-Electric Corporation T/A Hydro Tasmania

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established