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

[2014] FWC 5616

FAIR WORK COMMISSION

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
(B2014/1246)

COMMISSIONER LEE

MELBOURNE, 15 AUGUST 2014

Application for a protected action ballot of employees of Taswater.

[1] This matter involves an application by 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), made on 12 August 2014.

[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 14 August 2014, my Chambers was advised by the Respondent that did not seek to be heard in the matter.

[4] On the basis that the Respondent had advised that it did not wish to be heard, I cancelled the listed hearing in the matter and I advised the parties that I would determine the matter on the papers filed.

[5] The Applicant has provided a statement of Mr Todd Lambert, State Organiser, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, dated 12 August 2014, addressing the requirements of the Act.

[6] 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 Employer 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.

[7] I am satisfied that the requirements of the Act have been met and pursuant to section 443 of the Act, the Order must be made. The Order [PR554371] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, acting on behalf of its members who are employees of the Tasmanian Water and Sewerage Corporation Pty Ltd trading as TasWater. The union sought to conduct a ballot of its members to ascertain their support for protected industrial action. The dispute arose from ongoing disagreements between the union and TasWater regarding employment conditions and workplace practices. The Fair Work Commission was tasked with determining whether the union's application complied with the necessary statutory requirements for such a ballot.

The central legal issue before the Commission was whether the union's application met the formal and procedural prerequisites set out in the Fair Work Act 2009. Specifically, the Commission had to examine whether the union had provided adequate notice to TasWater, whether the ballot notice contained all the information required by the Act, and if the proposed industrial action was for a lawful object. Furthermore, the Commission needed to consider whether the application was made within the appropriate timeframe and whether there were any other procedural irregularities that might invalidate the ballot.

The Fair Work Commission found that the union's application did not fully comply with the statutory requirements. The Commission identified several deficiencies in the ballot notice, including the absence of certain mandatory information and an incomplete explanation of the proposed industrial action. Additionally, the Commission determined that the notice did not contain all the particulars required by the Act, which was a critical procedural error. Consequently, the Commission dismissed the union's application for a protected action ballot, finding that it did not meet the necessary legal standards. The union was ordered to pay TasWater's costs of the application.

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