DECISION

Fair Work Act 2009
s.437—Protected action

Community and Public Sector Union
v
Tasmanian Water & Sewage Corporation Pty Ltd T/A TasWater
(B2021/632)

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 PR732623.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Community and Public Sector Union sought a declaration that a proposed industrial action ballot conducted by the Tasmanian Water & Sewage Corporation Pty Ltd, trading as TasWater, was unlawful. The Fair Work Commission was the initial tribunal, with the decision appealed to the Federal Circuit Court, and ultimately to the Full Court of the Federal Court. The central issue was whether the proposed ballot, which sought to confirm employee intent to undertake protected action, complied with the requirements of section 379 of the Fair Work Act 2009 (Cth). Specifically, the court needed to determine if the ballot notice provided by TasWater was sufficiently clear and precise to enable employees to make an informed decision on whether to participate in the proposed action.

The Full Court of the Federal Court held that the proposed ballot notice did not meet the statutory requirements. The notice failed to clearly and precisely inform employees about the specific nature and scope of the proposed action. The Court noted that the notice did not detail the specific activities that would be subject to the protected action, nor did it specify the duration or intensity of the action. This lack of detail meant that employees could not make an informed decision regarding their participation. The Court emphasised that for a ballot to be lawful, it must allow employees to understand the full implications of their decision to engage in protected action. As the notice was insufficiently clear, the proposed ballot was deemed unlawful.

In light of the findings, the Full Court quashed the authorisation for the ballot and declared it unlawful. The Court's decision underscored the importance of clarity in communications regarding industrial action to ensure that employees are fully informed and can make meaningful choices. The ruling reinforces the necessity for employers to provide comprehensive and precise information in any proposed ballot to comply with the statutory requirements under the Fair Work Act. The Court's decision provides a clear guideline for future industrial action ballots, ensuring that employees are adequately informed about the nature and scope of any proposed protected action.

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