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

[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

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.

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’).

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

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.’

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.

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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union Northern Mining & NSW Energy District brought an application before the Fair Work Commission, seeking to have a protected action ballot of employees of Ausgrid Management Pty Ltd t/a Ausgrid deemed unprotected. The applicants argued that the ballot notice was defective, and as a result, the ballot was not protected action. The respondents contended that the ballot was valid and protected, and the applicants' application should be dismissed. The Fair Work Commission was tasked with determining whether the ballot notice complied with the statutory requirements for a protected action ballot and, if not, whether the defects were significant enough to render the ballot unprotected.

The central issue before the Commission was whether the ballot notice provided by the applicants was defective and, if so, whether the defects were material enough to render the ballot unprotected. The Commission considered whether the notice provided sufficient information to allow employees to make an informed decision about participating in the ballot. The applicants argued that the notice did not adequately inform employees about the potential consequences of protected action and the potential impact on their employment. The respondents contended that the notice was sufficient and did not render the ballot unprotected.

In reaching its decision, the Commission found that the ballot notice did contain defects but held that these were not significant enough to render the ballot unprotected. The Commission concluded that the defects did not prevent employees from making an informed decision about participating in the ballot. The Commission found that the notice provided sufficient information about the potential consequences of protected action and the potential impact on employment. The applicants' application was dismissed.

The Fair Work Commission dismissed the applicants' application, finding that the ballot notice, while defective, did not render the ballot unprotected. The Commission held that the defects were not material enough to prevent employees from making an informed decision about participating in the ballot. The ballot was deemed to be protected action, and the applicants' application was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established