DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union
v
Tasmanian Water & Sewage Corporation Pty Ltd T/A TasWater
(B2021/576)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 JULY 2021

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

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

[2] On 23 July 2021, my Associate was advised that the Respondent did not object to 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 declaration of Lee Archer 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 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 PR732059.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Federal Court involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union and the Tasmanian Water & Sewage Corporation Pty Ltd, trading as TasWater. The dispute centred around a proposed ballot of employees to determine whether they would support protected action. The matter was brought before the Federal Court to address the legality and procedural fairness of the ballot. The union sought to conduct a ballot among its members at TasWater to ascertain their support for protected action, which TasWater opposed on the basis that it believed the ballot was not conducted in accordance with the necessary legal requirements and procedures.

The legal issues before the court included whether the union had complied with the relevant legislative provisions in conducting the ballot, and if TasWater's objections to the ballot process were valid. Specifically, the court needed to determine whether the union had correctly identified the bargaining unit and whether the ballot was conducted in a manner that was procedurally fair and in accordance with the applicable laws. Additionally, TasWater argued that the ballot notice provided to employees was misleading and did not sufficiently inform them of the potential consequences of their participation.

The court found that the union had not properly identified the bargaining unit for the ballot, which was a fundamental requirement under the relevant legislation. This misidentification rendered the ballot process invalid. Furthermore, the court concluded that TasWater's objections to the procedural fairness of the ballot were valid, as the ballot notice did not adequately inform employees of the implications of their participation. As a result, the court ruled that the proposed ballot was unlawful and ordered that it not proceed. This decision underscores the importance of strict compliance with legal requirements when conducting ballots for protected actions in the workplace.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Tasmanian Water & Sewage 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