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

[2022] FWC 2203

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

Power and Water Corporation

(B2022/1237)

VICE PRESIDENT CATANZARITI

SYDNEY, 19 AUGUST 2022

Proposed protected action ballot of employees of Power and Water Corporation

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 Power and Water Corporation (Respondent).

On 18 August 2022, 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 David Hayes of the Applicant declared on 15 August 2022, 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 PR744955.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, acting as the applicant, and the Power and Water Corporation, as the respondent. The applicant sought an order for a protected action ballot to be conducted among certain employees of the respondent. This application was made under section 437 of the Fair Work Act 2009, which pertains to protected action. The respondent did not oppose the application, and the matter was determined by the Fair Work Commission without the need for a hearing.

The central legal issue before the court was whether the applicant had met the criteria set out in section 443(1) of the Act, specifically regarding the notification time and the genuine attempt to reach an agreement with the respondent. The applicant needed to demonstrate that it had genuinely tried to reach an agreement with the respondent and that the required notification period had been met. The evidence presented, including the statutory declaration by David Hayes, was critical in establishing these points.

The Fair Work Commission, in reviewing the material submitted, found that the applicant had indeed fulfilled the conditions of section 443(1) of the Act. The commission was satisfied with the evidence that the applicant had genuinely engaged in bargaining and had met the notification period. Consequently, the Vice President determined to grant the application for a protected action ballot. This decision underscores the importance of thorough documentation and genuine negotiation efforts in labour disputes under the Fair Work Act.

The final order issued by the Vice President allowed for the protected action ballot to proceed, as detailed in the separately issued Order in PR744955. This decision reinforces the procedural requirements and the role of the Fair Work Commission in ensuring that the rights of employees and unions are protected under the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established