Construction, Forestry, Mining and Energy Union Northern Mining & NSW Energy District v Ausgrid Management Pty Ltd t/a Ausgrid

[2017] FWC 6222

[2017] FWC 6222

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

S 437—Protected action

Construction, Forestry, Mining and Energy Union – Northern Mining & NSW Energy District

v

Ausgrid Management Pty Ltd t/a Ausgrid

(B2017/1130)

Deputy President Sams SYDNEY, 24 NOVEMBER 2017

Protected action ballot of employees of Ausgrid Management Pty Ltd t/a Ausgrid.

1. This is an application, pursuant to s 437 of the Fair Work Act 2009 (‘the Act’) for a protected action ballot order in respect to certain members of the Construction, Forestry, Mining and Energy Union – Northern Mining & NSW Energy District (‘the Union’) employed by Ausgrid Management Pty Ltd t/a Ausgrid (‘the employer’).

1. The Union seeks to ballot those employees of the employer who are its members and to whom the proposed enterprise agreement will apply.

1. The relevant statutory provisions governing this application are set out at s 443 of the Act as follows:

‘443 When the FWC must make a protected action ballot order

(1)    The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b)   the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a)   the name of each applicant for the order;

(b)   the group or groups of employees who are to be balloted;

(c)   the date by which voting in the protected action ballot closes;

(d)   the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a)    the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b)   the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.’

1. The Union filed an amended draft order reflecting all the ballot questions set out in the application form yesterday, 23 November 2017. The Fair Work Commission (the ‘Commission’) was subsequently advised that the employer did not oppose the making of the proposed order as amended. In these circumstances, I have determined the matter ‘on the papers’. I am satisfied that the application has been made in accordance with the requirements of s 437 of the Act and that the Union is genuinely trying to reach an agreement with the employer.

1. Given that I am satisfied that s 443(1)(a) and (b) have been complied with, the Commission must make the protected action ballot order, as sought by the Union. For the above reasons, the order[1] was issued earlier today.

DEPUTY PRESIDENT

[1]     PR598035.

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