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
Utilities Management Pty Ltd T/A SA Power Networks
(B2018/114)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 23 FEBRUARY 2018

Proposed protected action ballot of employees of Utilities Management Pty Ltd T/A SA Power Networks

[1] This is an application dated 21 February 2018 made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CFMEU) (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 Utilities Management Pty Ltd T/A SA Power Networks (SA Power Networks) (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. SA Power Networks indicated that under section 443(5) of the FW Act exceptional circumstances exist to justify the period of written notice referred to in section 414(2)(a) of the FW Act be extended to five days. The CEPU indicated that they had no objection to this request.

[3] SA Power Networks had no other objection to the application.

[4] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[5] On the basis of the material before me, including the statutory declaration of Benjamen Laurance Jewell of the CEPU dated 16 February 2018, 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.

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

[7] I am further satisfied, having regard to the nature of the employer’s business and the potential impact of protected action on the public interest, that exceptional circumstances exist warranting a longer period of written notice than three (3) working days for the taking of protected action (if approved by ballot). I have determined, by consent, that a period of five (5) working days written notice is appropriate pursuant to section 443(5) and that this will be required to be given pursuant to 414(2)(b) of the FW Act.

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

DEPUTY PRESIDENT

1 PR600628

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, which sought authorisation for its members employed by Utilities Management Pty Ltd, trading as SA Power Networks, to undertake protected action in the form of a ballot. The union aimed to ballot its members about potential industrial action due to disputes over the employees' conditions of employment. The dispute was heard by the Commission, which is tasked with resolving workplace disputes under Australian industrial relations law.

The central legal issues addressed by the Commission were whether the union had complied with the procedural requirements set out in the Fair Work Act 2009, specifically concerning the notice and information that must be provided to employers before a protected action ballot can be held. The Commission also had to consider whether the proposed ballot related to a genuine dispute over employees' conditions of employment, as required by the Act.

In determining the case, the Commission examined the evidence provided by the union regarding the nature of the dispute and the procedural steps taken. The Commission found that the union had complied with the necessary procedural requirements, including providing the requisite notice to the employer and detailing the proposed ballot in the required manner. Furthermore, the Commission accepted that the ballot related to a genuine dispute over the employees' conditions of employment. Consequently, the Commission authorised the union to proceed with the ballot as proposed.

The Fair Work Commission authorised the union to conduct the proposed ballot of its members employed by Utilities Management Pty Ltd T/A SA Power Networks, finding that the union had satisfied the procedural and substantive requirements under the Fair Work Act 2009. This decision allowed the union to proceed with its proposed industrial action, subject to the outcome of the ballot.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Utilities Management Pty Ltd T/A SA Power Networks

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established