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

[2022] FWC 2195

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 Generation Corporation

(B2022/1235)

VICE PRESIDENT CATANZARITI

SYDNEY, 18 AUGUST 2022

Proposed protected action ballot of employees of Power Generation 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 Generation Corporation (Respondent).

On 17 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 PR744917.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) made an application to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Power Generation Corporation (Respondent). The application was made on the basis that the Applicant had been, and was, genuinely trying to reach agreement with the Respondent, and that a notification time in relation to the proposed agreement had been met. The Respondent did not oppose the application, and the matter was determined on the papers without holding a hearing.

The legal issue before the court was whether the Applicant had satisfied the requirements of section 437 of the Fair Work Act 2009 to be granted a protected action ballot order. This involved determining whether the Applicant had genuinely tried to reach agreement with the Respondent, and whether the notification time in relation to the proposed agreement had been met. The court also needed to consider whether the requirements of section 443(1) of the Act had been satisfied.

The court found that the Applicant had satisfied all of the requirements for a protected action ballot order under section 437 of the Fair Work Act 2009. This was based on the material before the court, including a statutory declaration from David Hayes of the Applicant, which set out the steps taken by the Applicant in bargaining with the Respondent, and confirmed that the Applicant had been, and was, genuinely trying to reach agreement with the Respondent. The court was also satisfied that the notification time in relation to the proposed agreement had been met, and that the requirements of section 443(1) of the Act had been satisfied. An Order was separately issued in PR744917.

In light of the above, the court granted the Applicant's application for a protected action ballot order under section 437 of the Fair Work Act 2009. This allows the Applicant to proceed with a ballot of its members to determine whether they wish to take protected action in relation to the proposed agreement with the Respondent. The decision of the court is final and binding on both parties, and cannot be appealed except on a question of law.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established