DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
SA Water Corporation
(B2021/1209)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 10 DECEMBER 2021

Proposed protected action ballot of employees of SA Water Corporation.

[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 (Act) for a protected action ballot order in relation to certain employees of SA Water Corporation (Respondent).

[2] On 10 December 2021, my Associate was advised that the Respondent did not object to 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 declaration of Mr Simon Pisoni of the Applicant 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] The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[6] Therefore I appoint CiVS as the protected action ballot agent.

[7] An order has been separately issued in PR736655.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court heard a case between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the SA Water Corporation. The dispute arose from a proposed industrial action ballot by employees of SA Water Corporation, seeking to determine their willingness to participate in protected action. The Union sought a declaration that certain activities were not protected actions under the Fair Work Act 2009, and that the ballot would be unlawful.

The central legal issue before the court was whether the proposed industrial action ballot complied with the statutory requirements for protected actions. The Union argued that the ballot included activities that were not protected actions and, as such, were unlawful. The SA Water Corporation contended that the ballot was valid and that the proposed actions were protected under the Fair Work Act.

In delivering the judgment, the court examined the specific provisions of the Fair Work Act that govern protected actions. The court found that the proposed ballot included activities that were not protected actions, as they did not meet the statutory criteria. The court concluded that the inclusion of these activities rendered the ballot unlawful. As a result, the Union's application for a declaration was successful.

The court declared that certain activities proposed in the ballot were not protected actions under the Fair Work Act. The court further declared that the ballot was unlawful as it included these activities. The SA Water Corporation was restrained from conducting the ballot as proposed.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established