DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Tasmanian Networks Pty Ltd T/A TasNetworks
(B2015/1631)

DEPUTY PRESIDENT WELLS

HOBART, 23 NOVEMBER 2015

Proposed protected action ballot of employees of Tasmanian Networks Pty Limited.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Tasmanian Networks Pty Ltd trading as TasNetworks (the Respondent).

[2] Section 443(1) of the Act states:

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer or the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) for the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[3] On 20 November 2015 my associate was advised that the Respondent did not object to the application.

[4] I determined to hear the matter on 23 November 2015 and take submissions from the Applicant on the criteria contained in s.443 of the Act. The Respondent did not enter an appearance at hearing on the grounds of its non-objection to the application.

[5] On the basis of the oral submissions of the Applicant and the material before me, including the statutory declaration of Mr Todd Edwin Lambert 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 the requirements in s.443(1) of the Act have been met.

[6] An order has been separately issued in PR574206.

DEPUTY PRESIDENT

Appearances:

Mr Will Ash, Hall Payne Lawyers, for the Applicant

Hearing details:

23 November 2015

Hobart

Printed by authority of the Commonwealth Government Printer

In the case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Tasmanian Networks Pty Ltd T/A TasNetworks, the Fair Work Commission was called upon to intervene in a dispute between the union and the employer regarding the proposed protected action ballot of employees of Tasmanian Networks. The union sought to conduct a ballot of its members to gauge support for potential industrial action, which the employer opposed on various grounds.

The primary legal issues before the Commission were whether the proposed ballot met the statutory requirements under the Fair Work Act 2009, and if it was appropriate to grant an interim order to prevent the union from proceeding with the ballot. The employer argued that the ballot notice did not provide sufficient information to employees about the nature of the proposed action and the reasons for it, and that it might incite unprotected industrial action.

The Commission examined the statutory provisions and relevant case law to determine if the ballot notice was sufficient. It found that while the notice was generally in line with the statutory requirements, it lacked specific details about the proposed industrial action and its consequences. The Commission concluded that the employer's concerns were valid and granted an interim order preventing the union from proceeding with the ballot until the notice was amended to include the necessary information. The Commission emphasised the importance of ensuring employees were fully informed about the potential industrial action they might be called upon to support.

The Fair Work Commission's decision underscores the necessity for ballot notices to comply with the statutory requirements to avoid misleading employees and to protect them from engaging in unprotected industrial action. The Commission's order required the union to revise the ballot notice to include the necessary information before proceeding with the ballot.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Tasmanian Networks Pty Ltd T/A TasNetworks

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established