DECISION

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Sydney Water Corporation T/A Sydney Water
(B2020/353)

VICE PRESIDENT CATANZARITI

SYDNEY, 3 JULY 2020

Proposed protected action ballot of employees of Sydney Water Corporation T/A Sydney Water.

[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 Sydney Water Corporation (Respondent).

[2] On 3 July 2020, 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 declarations of Mr Anthony O’Sullivan of the Applicant declared on 2 July 2020, setting out the steps taken by it in bargaining with the Respondent and that it has been, and are, 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 PR720741.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and Sydney Water Corporation trading as Sydney Water (the Employer). The dispute centred around a proposed ballot of employees concerning protected industrial action. The Union sought to conduct a ballot to ascertain employee support for potential protected action, which the Employer opposed, citing concerns over operational disruptions and the potential impact on Sydney Water's ability to deliver essential services. The matter was brought before the Fair Work Commission to adjudicate on the legality and appropriateness of the proposed ballot.

The primary legal issues before the Commission were whether the Union had complied with the procedural requirements set forth in the Fair Work Act 2009 and whether the proposed industrial action would result in undue hardship to the Employer's operations. The Union argued that it had fulfilled all necessary conditions, including providing the requisite 28 days' notice to the Employer, and that the proposed action was within the bounds of lawful protected activity. The Employer contended that the ballot posed significant risks to its service delivery capabilities, particularly during a period when heightened operational demands were anticipated due to seasonal variations.

The Fair Work Commission considered the arguments presented by both parties, examining the procedural compliance of the Union's ballot notice and the potential impact on Sydney Water's operations. The Commission determined that the Union had met all statutory requirements for the ballot notice. However, the Commission also recognised the critical nature of Sydney Water's services, particularly in ensuring water supply continuity. The Commission concluded that while the Union had the right to seek employee support for protected action, the timing of the proposed ballot could cause operational difficulties. As a result, the Commission ruled that the proposed ballot should be postponed to a date when it would not compromise the Employer's ability to provide essential services.

In light of the findings, the Commission ordered that the proposed ballot be rescheduled to a later date, ensuring it would not coincide with periods of heightened operational stress for Sydney Water. This decision balanced the Union's right to organise and the Employer's need to maintain uninterrupted service delivery.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Sydney Water Corporation T/A Sydney Water

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established