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
(B2021/574)

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 PR732047.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union contested the legality of a proposed protected action ballot of employees of the Tasmanian Water & Sewage Corporation Pty Ltd, trading as TasWater. The union sought authorisation for a ballot of its members who were employed by TasWater, to ascertain their willingness to participate in protected action. The company opposed the ballot, contending that the union's action was unlawful. The Commission was required to determine whether the union had complied with the requisite provisions of the Fair Work Act 2009 (Cth) in relation to the ballot, and whether the ballot was a protected action for the purposes of the Act.

The Commission considered the provisions of the Act that regulate protected action, and held that the union's ballot did not satisfy the requirements for protected action. The union had failed to provide TasWater with the required information regarding the nature and proposed timing of the ballot, and had not given TasWater an opportunity to provide its views on the proposed action. The Commission also noted that the union had not demonstrated that the proposed action was in relation to an industrial issue, and that it was not a protected action for the purposes of the Act. Accordingly, the Commission determined that the union's proposed ballot was unlawful.

The Commission ordered that the union cease and desist from proceeding with the proposed ballot, and directed that any notices that had already been issued in relation to the ballot be withdrawn. The Commission also ordered that the union pay TasWater's costs of the proceedings. The union's application for authorisation of the ballot was dismissed in its entirety.

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