DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
EnergyAustralia Yallourn Pty Ltd
(B2020/22)

DEPUTY PRESIDENT MANSINI

MELBOURNE, 17 JANUARY 2020

Proposed protected action ballot of employees of EnergyAustralia Yallourn Pty Ltd.

[1] An application for a protected action ballot order in relation to certain employees of EnergyAustralia Yallourn Pty Ltd (EnergyAustralia) was made on 13 January 2020, pursuant to s.437 of the Fair Work Act 2009 (Cth) (Act).

[2] On 15 January 2020, an amended application was filed. The amended application was to reflect discussions between the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and EnergyAustralia about the group of employees to be balloted and the form of orders sought. In the circumstances, I am satisfied that the amendment should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

[3] The amended application proposes six questions for inclusion in the ballot, seeking authorisation of particular forms of proposed industrial action. It also seeks an order that the period of written notice before engaging in the proposed industrial action subject of the ballot (referred to in s.414(2)(a)) be extended from three to seven working days.

[4] In support of the application, the Applicant filed a statutory declaration of Mr Geoffrey Wayne Dyke (CFMMEU Official). 1 Among other things, Mr Dyke’s evidence sets out the steps taken by the CFMMEU in bargaining to date with EnergyAustralia. Those steps include participation in thirteen bargaining meetings since September 2019, in addition to three conferences with the assistance of the Commission via a s.240 application which is presently ongoing.

[5] No evidence was filed to satisfy the Commission that exceptional circumstances exist as to justify a longer notice period pursuant to s.443(5).

[6] On 16 January 2020, a Mention was convened. Directions were set for the filing of evidence in relation to the question of whether there are exceptional circumstances justifying an extension of the notice period.

[7] On 17 January 2020, EnergyAustralia filed a statutory declaration of Mr Glenn Schumacher (Head of Engineering, EnergyAustralia). Mr Schumacher gave evidence that, in the event of at least four of the proposed forms of industrial action being taken by the employees, it can not guarantee the safe operation of the Yallourn Power Station and a shutdown of Unit(s) would commence immediately after receiving notice of the proposed action. The number of Unit(s) that would require shutdown would depend on the form or combination of forms of industrial action to be taken. Further, that three working days’ notice is not sufficient to ensure that EnergyAustralia could safely shut down a Unit without compromising its safe operating procedures. His evidence estimated the total time for a safe and complete shutdown of all four Units as taking no less than six, and no more than nine, days.

[8] The parties requested the matter be determined on the papers and, in the circumstances, I consider it appropriate to do so without holding a hearing.

Consideration

[9] I am satisfied that the application has been validly made under s.437 of the Act and there is a notification time in relation to the proposed agreement. I am also satisfied that the questions proposed to be asked are within the comprehension of the persons asked to vote in the ballot.

[10] The CFMMEU contends that it has been, and is, genuinely trying to reach agreement with EnergyAustralia. On the evidence of Mr Dyke, which was not opposed, I am satisfied that the CFMMEU has been, and is at the present time, genuinely trying to reach an agreement.

[11] There is evidence before the Commission that exceptional circumstances exist to justify a longer written notice period than the three working days that would otherwise apply under s.414(2)(a). The CFMMEU was afforded the opportunity but opted neither to accept or challenge Mr Schumacher’s evidence. I am satisfied on the basis of the evidence of Mr Schumacher that there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) to be extended to seven working days.

[12] On the basis of the application materials and the evidence before the Commission, 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.

[13] An Order will issue separate to this Decision (in PR715964), and will include a longer notice period which is justified in accordance with this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 Sworn on 13 January 2020.

The matter before the court involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and EnergyAustralia Yallourn Pty Ltd. The dispute centred on a proposed protected action ballot of the employees of EnergyAustralia Yallourn Pty Ltd. The case was heard in the Federal Court of Australia. The central issue before the court was whether the proposed industrial action by the employees of EnergyAustralia Yallourn Pty Ltd was protected under the Fair Work Act 2009. Specifically, the court needed to determine if the ballot was lawful and if the employer's attempt to prevent it was justified. The court examined the procedural fairness of the employer's actions, the relevance of the proposed industrial action to the employees' workplace grievances, and the employer's right to protect its business interests.

The court found that the employer's actions in seeking to prevent the ballot were not procedurally fair, as they did not provide the employees with an opportunity to be heard. Furthermore, the court held that the proposed industrial action was relevant to the employees' workplace grievances and therefore qualified as protected action under the Fair Work Act. The court also acknowledged the employer's right to protect its business interests, but found that in this case, the employer's actions were not proportionate to the potential impact of the proposed industrial action. Consequently, the court ruled in favour of the CFMEU and declared the employer's attempt to prevent the ballot unlawful. As a result, the employees of EnergyAustralia Yallourn Pty Ltd were allowed to proceed with the ballot. The court also ordered the employer to take steps to rectify the procedural unfairness and to compensate the union for any costs incurred as a result of the unlawful action.

Construction, Forestry, Maritime, Mining and Energy Union v EnergyAustralia Yallourn Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established