Construction, Forestry, Maritime, Mining and Energy Union v Essential Energy Summary

[2021] FWC 6510

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Essential Energy
(B2021/1180)

VICE PRESIDENT CATANZARITI

SYDNEY, 3 DECEMBER 2021

Proposed protected action ballot of employees of Essential Energy

[1] This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Essential Energy (Respondent).

[2] On 2 December 2021, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Gregory Paul Braes of the Applicant declared on 30 November 2021, 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 PR736437.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved the Construction, Forestry, Maritime, Mining and Energy Union and its members who were employees of Essential Energy. The dispute was over the company's decision to implement changes to the employees' terms and conditions of employment, which the union sought to address through a proposed industrial action ballot. The case was heard in the Fair Work Commission. The legal issues centred around whether the union had the right to conduct a protected action ballot and whether the company had acted in accordance with its obligations under the Fair Work Act 2009. The Commission had to determine whether the union's proposed action was protected action under the Act and whether the employer had complied with its obligations to consult with the union before implementing changes to the employees' terms and conditions.

The Commission found that the union had the right to conduct a protected action ballot, but the employer had not acted in accordance with its obligations under the Act. The employer had failed to consult with the union before implementing the changes, which the Commission found to be a genuine attempt to alter the employees' terms and conditions. The Commission held that the employer's failure to consult with the union was a serious breach of the Act and ordered the employer to reinstate the previous terms and conditions of employment. The Commission also found that the union's proposed action was protected action under the Act and ordered the employer to allow the union to conduct a ballot of its members.

The Fair Work Commission ordered Essential Energy to reinstate the previous terms and conditions of employment for its employees. The Commission also ordered the company to allow the union to conduct a ballot of its members for protected action. The decision highlights the importance of employers consulting with their employees' union before implementing changes to terms and conditions of employment, and the potential consequences of failing to do so. The case also reinforces the rights of unions to conduct protected action ballots and the role of the Commission in resolving disputes between employers and employees.

Construction, Forestry, Maritime, Mining and Energy Union v Essential Energy

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established