| [2021] FWC 4435 |
| FAIR WORK COMMISSION |
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
(B2021/577)
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 PR732064.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR732063>
- AGLC
- Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Tasmanian Water & Sewage Corporation Pty Ltd T/A TasWater [2021] FWC 4435
- Case
- [2021] FWC 4435
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the Union's ballot complied with section 395 of the Fair Work Act, which sets out the conditions that must be satisfied for a union to hold a ballot in relation to protected action. The Court had to determine whether the ballot notice and the ballot paper provided to the employees were in the prescribed form and contained all the necessary information as required by the Act. Additionally, the Court considered whether the Union had provided TasWater with the requisite information about the proposed industrial action.
The Court found that the Union's ballot did not comply with the Act as it failed to include the required information in both the ballot notice and the ballot paper. The Court held that the ballot notice did not include a statement that the proposed industrial action was lawful and did not inform the employees that they were not obliged to vote. Furthermore, the ballot paper did not contain a statement that the proposed industrial action was lawful, nor did it inform the employees that they were not obliged to vote. The Court also found that the Union had not provided TasWater with the necessary information about the proposed industrial action, as required by the Act. Given these findings, the Court granted the injunction sought by TasWater, preventing the Union from proceeding with the ballot.
In conclusion, the Court ruled in favour of TasWater, granting the injunction and prohibiting the Union from proceeding with the ballot. The Court's decision emphasised the importance of unions adhering to the strict requirements of the Fair Work Act when organising ballots for protected action, ensuring that all necessary information is provided to employees and relevant employers. This case serves as a reminder for unions to carefully review and comply with the legislative framework governing industrial action.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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