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
(B2021/578)

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 PR732067.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (the Union) sought a declaration that a proposed protected action ballot of employees of Tasmanian Water & Sewage Corporation Pty Ltd (TasWater) was lawful. The Union also sought an injunction to prevent TasWater from taking any action that would interfere with the ballot, and damages for breach of section 45 of the Fair Work Act 2009. The dispute was heard by the Federal Circuit Court of Australia.

The key legal issues before the court were whether the Union's proposed ballot complied with the procedural requirements of the Fair Work Act, and whether TasWater had acted unlawfully in attempting to interfere with the ballot. The Union argued that TasWater had breached section 45 of the Act by threatening to terminate employees who participated in the ballot, and by requiring employees to obtain authorisation from management before participating in the ballot. TasWater, on the other hand, argued that the ballot was not lawful because it did not comply with the Act's requirements for protected action.

The court found that the Union's proposed ballot did not comply with the procedural requirements of the Fair Work Act. Specifically, the court found that the ballot did not provide TasWater with sufficient information about the nature of the proposed action, and that it did not give TasWater an opportunity to negotiate with the Union before the ballot took place. The court also found that TasWater had acted unlawfully in attempting to interfere with the ballot by threatening to terminate employees who participated in it. The court issued an injunction to prevent TasWater from taking any action that would interfere with the ballot, and ordered TasWater to pay damages to the Union for breach of section 45 of the Act.

The court did not make any orders regarding the lawfulness of the ballot itself, as it found that the Union's proposed ballot did not comply with the procedural requirements of the Fair Work Act. The court did, however, order TasWater to pay the Union's costs of the proceedings.

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