DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Tasmanian Water & Sewage Corporation Pty Ltd T/A TasWater
(B2021/575)

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 Construction, Forestry, Maritime, Mining and Energy 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 Mr David Button 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 PR732057.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Construction, Forestry, Maritime, Mining and Energy Union versus Tasmanian Water & Sewage Corporation Pty Ltd trading as TasWater, the Fair Work Commission was tasked with determining the validity of a proposed industrial action ballot by employees of TasWater. The union had proposed a ballot to potentially proceed with protected action, which the employer contested on the basis that the proposed action was not related to the employees' terms and conditions of employment, and thus did not meet the criteria for a protected action ballot under the Fair Work Act 2009.

The central legal issue before the Commission was whether the proposed industrial action was related to the employees' terms and conditions of employment. Additionally, the court had to consider if the proposed action complied with the requirements of the Fair Work Act, including the necessity for a protected action ballot. The Commission also needed to assess whether the proposed action was protected action as defined under the Act, given the employer's assertion that it was not related to the employees' terms and conditions.

The Fair Work Commission found that the proposed industrial action was indeed related to the employees' terms and conditions of employment. The Commission noted that the dispute involved issues such as pay rates, which are directly related to the employees' terms and conditions. Consequently, the Commission ruled that the proposed action was eligible for a protected action ballot. The Commission emphasised that the employees' concerns were legitimate and pertained to their employment terms, thereby satisfying the legal criteria for a protected action ballot. The Commission's decision was grounded in the principle that the protection of employees' rights to take industrial action, when related to their employment terms, is a fundamental aspect of the industrial relations framework.

Construction, Forestry, Maritime, Mining and Energy 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