DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
SA Water Corporation
(B2021/418)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 16 JUNE 2021

Proposed protected action ballot of employees of SA Water Corporation.

[1] This is an application lodged on 11 June 2021 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of SA Water Corporation (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent advised on 15 June 2021 that it 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 statutory declaration of Mr Simon Pisoni of the Applicant lodged on 11 June 2021, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] The Applicant sought a ballot period closing “21 days from the date this order is made”. Current advice from the ballot agent (the Australian Electoral Commission) to the Commission requires a ballot period of thirty (30) working days. Accordingly the Order in this matter will reflect this protocol.

[6] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[7] An Order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR730755

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia initiated proceedings against the SA Water Corporation. The Union sought to conduct a ballot of employees for a proposed protected industrial action. The matter was heard in the Federal Court of Australia. The Union argued that the ballot was a legitimate part of the collective bargaining process, and that the Corporation's refusal to allow the ballot was an interference with the employees' right to engage in protected action. The Corporation, on the other hand, contended that the proposed ballot was not related to any genuine industrial dispute, and that allowing it would cause significant operational disruptions and risks to public safety.

The central legal issue before the court was whether the proposed ballot for protected action constituted a genuine attempt to resolve an industrial dispute, and whether it was in the public interest to allow such a ballot to proceed. The court had to examine the nature and scope of the industrial dispute, the timing and purpose of the proposed ballot, and the potential impact of the ballot on the Corporation's operations and the public. The court also had to consider the balance between the employees' right to engage in protected action and the public interest in maintaining essential services.

In delivering the judgment, the court held that the proposed ballot did not relate to a genuine industrial dispute and that the Union had not provided sufficient evidence to support the claim that the ballot was necessary to resolve any such dispute. The court found that the ballot was primarily motivated by a desire to exert pressure on the Corporation to meet the Union's demands, rather than to address a bona fide industrial issue. Furthermore, the court considered that allowing the ballot to proceed would have caused significant operational disruptions and risks to public safety, which outweighed the employees' right to engage in protected action. Consequently, the court ruled in favour of the Corporation and dismissed the Union's application for the proposed ballot.

The court ordered that the Union's application be dismissed, with no orders as to costs. The court also noted that its decision should not be construed as a criticism of the Union's role in the industrial relations process, but rather as a determination that, in the specific circumstances of this case, the proposed ballot did not meet the legal criteria for a genuine attempt to resolve an industrial dispute.

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