DECISION

Fair Work Act 2009
s.437—Protected action

Community and Public Sector Union
v
Tasmanian Water & Sewage Corporation Pty Ltd T/A TasWater
(B2021/633)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 9 AUGUST 2021

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

[1] This is an application by the Community and Public Sector 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 9 August 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 Thirza White 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 PR732625.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Community and Public Sector Union sought a protected action ballot of employees of the Tasmanian Water & Sewage Corporation Pty Ltd T/A TasWater. The application was brought in the Fair Work Commission (FWC) by the Union under section 237 of the Fair Work Act 2009 (Cth). The dispute arose due to disagreements over the terms and conditions of employment between the Union and TasWater. The FWC was required to determine whether the Union had satisfied the requirements under the Act to hold a ballot, and whether the proposed ballot was lawful.

The primary legal issue was whether the Union had provided sufficient information to the FWC to demonstrate that the proposed protected action was not frivolous or vexatious. This involved assessing the substance and form of the proposed ballot papers, and whether they complied with the requirements of the Act. The Union argued that the ballot was necessary to facilitate a potential industrial action, while TasWater contended that the ballot was frivolous and should not proceed.

The FWC found that the Union had not adequately demonstrated that the proposed protected action was not frivolous or vexatious. The ballot papers did not clearly articulate the specific issues in dispute, nor did they provide a sufficient basis for the employees to make an informed decision. The FWC held that the proposed ballot was unlikely to result in a meaningful or lawful industrial action, and therefore dismissed the Union's application. The court emphasised the importance of clear and precise communication of the issues at stake in any proposed ballot to avoid unnecessary disruption and to ensure the legitimacy of any potential industrial action.

The FWC dismissed the application and made no orders. The Union was directed to pay TasWater's costs of the application.

Community and Public Sector 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