Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v NSW Electricity Networks Operations Pty Ltd as Trustee for NSW Electricity Networks Operations..

[2021] FWC 5574

[2021] FWC 5574

FAIR WORK COMMISSION

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
NSW Electricity Networks Operations Pty Ltd as Trustee for NSW Electricity Networks Operations Trust (TransGrid)
(B2021/766)

COMMISSIONER CAMBRIDGE SYDNEY, 8 SEPTEMBER 2021

Proposed protected action ballot of employees of NSW Electricity Networks Operations Pty Ltd as Trustee for NSW Electricity Networks Operations Trust.

[1] On 3 September 2021, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), made an application for a Protected Action Ballot Order (PABO). The application was made pursuant to section 437 of the Fair Work Act 2009 (the Act). The application was made in respect of members of the CEPU who are employees of NSW Electricity Networks Operations Pty Ltd as Trustee for NSW Electricity Networks Operations Trust (the employer or TransGrid) and whose employment is to be regulated by a proposed agreement to replace the TransGrid Employees Agreement 2016.

[2] The application seeks a ballot of employees of the employer who are members of the CEPU who would be covered by a proposed enterprise agreement. The application was supplemented with the Statutory Declaration of Allen Hicks (the Statutory Declaration) dated 3 September 2021. In summary, the Statutory Declaration provided information about events involving attempts made by the CEPU to reach agreement with the employer on the terms of a proposed enterprise agreement.

[3] The Fair Work Commission (the Commission) received correspondence dated 7 September 2021, from lawyers acting for the employer advising that the employer opposed the application for a PABO. Consequently, the application was listed for a Hearing before the Commission held at Sydney by video link on 8 September 2021. At the commencement of the Hearing the Commission granted permission pursuant to S. 596 of the Act, for either Party to be represented by lawyers or paid agents. Accordingly, at the Hearing the following appearances were recorded:

Mr A Jacka, appearedfor CEPU;

Mr A Wood from Herbert Smith Freehills lawyersappeared for the employer.

[4] Shortly after the commencement of the Hearing the proceedings were adjourned into private conference at the request of the Parties. At the resumption of the Hearing Mr Jacka advised that the CEPU would submit an amended draft Order and Mr Wood advised that the employer withdrew its objections to the PABO application on the basis of an agreement that had been reached which was reflected in the altered terms contained in the amended draft Order. Consequently, the matter has proceeded upon the application for the PABO in the terms of the amended draft Order.

[5] The determination of this matter is primarily governed by the provisions of section 443 of the Act. Section 443 is in the following terms:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 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.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[6] The Commission is satisfied that the application has been made in accordance with section 437 of the Act. Further, the Commission is satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In addition, the Commission is satisfied that the requirements of sections 438 and 440 of the Act have also been met.

[7] Therefore, pursuant to subsection 443 (1) of the Act, the Commission must make a Protected Action Ballot Order. The Order shall be made in the terms as broadly sought by the CEPU in the amended draft Order. Accordingly, an Order [PR733622] shall be issued separately.

COMMISSIONER

Appearances:

Mr A Jacka appeared for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

Mr A Wood, Solicitorof Herbert Smith Freehillsappeared for NSW Electricity Networks Operations Pty Ltd as Trustee for NSW Electricity Networks Operations Trust (TransGrid).

Hearing details:

2021.
Sydney:
September, 8 (video hearing).

Printed by authority of the Commonwealth Government Printer

<PR733620>