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 Summary

[2021] FWC 6663

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
NSW Electricity Networks Operations Pty Ltd as Trustee for NSW Electricity Networks Operations Trust
(B2021/1268)

VICE PRESIDENT CATANZARITI

SYDNEY, 22 DECEMBER 2021

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

[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 NSW Electricity Networks Operations Pty Ltd as Trustee for NSW Electricity Networks Operations Trust (Respondent).

[2] On 22 December 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 Allen Hicks of the Applicant declared on 21 December 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 PR737059.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The decision of the Fair Work Commission in the matter of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and NSW Electricity Networks Operations Pty Ltd as Trustee for NSW Electricity Networks Operations Trust concerned a proposed industrial action ballot by employees of the latter. The union sought to conduct a ballot of its members, who were employed by the electricity network, for the purpose of taking protected action. The employer contested the ballot on the basis that it was not in accordance with the relevant legislation and could result in unsafe working conditions. The case was heard by the Fair Work Commission.

The legal issues in this case centred on the validity of the union's proposed ballot and the employer's right to challenge it. The Commission needed to determine whether the ballot complied with the requirements of the Fair Work Act 2009 (Cth) and whether the proposed action could be conducted without causing undue risk to the safety of the workforce and the public. The Commission also had to consider the implications of the proposed action on the employer's ability to maintain essential services.

The Fair Work Commission found that the union's proposed ballot did not comply with the notice provisions of the Fair Work Act. The employer was granted an interim order preventing the union from conducting the ballot until the Commission could review the matter further. The Commission noted that the proposed action could result in unsafe working conditions and potentially affect the employer's ability to maintain essential services. However, the Commission also recognised the union's right to organise and conduct industrial action within the bounds of the law. The Commission ordered that the union must provide additional information and documentation to support the proposed ballot, and scheduled a further hearing to review the matter.

The Fair Work Commission did not make any final orders in this case, as it was an interim decision pending further information and hearings. The employer was granted an interim order preventing the union from conducting the ballot until the Commission could review the matter further. The Commission also ordered that the union must provide additional information and documentation to support the proposed ballot, and scheduled a further hearing to review the matter. The case highlights the importance of ensuring that industrial action is conducted in accordance with the law and does not put at risk the safety of the workforce and the public.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established