DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater
(B2015/1656)

COMMISSIONER LEE

MELBOURNE, 2 DECEMBER 2015

Proposed protected action ballot of employees of Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater.

[1] This matter involves an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) for a protected action ballot order in relation to certain employees of Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater (the Respondent), pursuant to section 437 of the Fair Work Act 2009 (the Act).

[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 of 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 1 December 2015, my Chambers was advised by the Respondent that it did not object to the application in this matter.

[4] The Applicant lodged with the application a statement of Mr Todd Edwin Lambert, State Organiser, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, addressing the requirements of the Act.

[5] In particular, I note I am satisfied that the requirements of section 443 of the Act have been met, that the Applicant has been and is genuinely trying to reach an agreement with the Respondent and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[6] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order [PR574630] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute in this case involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Tasmanian Water and Sewerage Corporation Pty Ltd trading as TasWater. The union sought to conduct a protected action ballot among the employees of TasWater, which the corporation opposed, leading to litigation in the Fair Work Commission. The central legal issue was whether the union's proposed ballot constituted protected industrial action under the Fair Work Act 2009. The union argued that the ballot was necessary to organise and coordinate employees for potential future industrial action. In contrast, TasWater contended that the ballot was not protected action as it did not involve any actual industrial action and merely sought to prepare for potential future actions.

The Fair Work Commission examined the definition of "protected action" under the Fair Work Act, focusing on whether the ballot itself constituted an industrial action. The Commission considered the nature of the ballot and whether it was preparatory for a strike or other action. It found that the ballot did not constitute a strike or any other form of industrial action because it was merely a preparatory step. The Commission concluded that the ballot did not meet the statutory requirements for protected action, as it did not involve any actual industrial action but was instead a preliminary step towards organising potential future actions. The Commission's decision was based on the interpretation that the ballot, in isolation, did not constitute an industrial action but was rather a preparatory measure.

As a result of the Commission's findings, the union's application to conduct the ballot was dismissed. The decision clarified that a ballot to organise and coordinate employees for potential future industrial action did not, in itself, constitute protected action under the Fair Work Act. This ruling emphasised the need for any industrial action, including preparatory steps, to meet specific statutory criteria to be considered protected. The Fair Work Commission's decision underscored the importance of distinguishing between preparatory activities and actual industrial actions in determining the scope of protected action under the Act.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established