DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Mining and Energy Union
v
Essential Energy T/A Essential Water
(B2015/1419)

COMMISSIONER MCKENNA

SYDNEY, 6 NOVEMBER 2015

Proposed protected action ballot of employees of Essential Energy t/as Essential Water.

[1] Further to the reasons given at the conclusion of proceedings today, and noting that Essential Energy T/A Essential Water did not oppose this application for a protected action ballot order given the agreed amendments to the draft order, the order [PR573717] now issues.

COMMISSIONER

Appearances:

A. Walkaden for the Construction, Forestry, Mining and Energy Union.

S. Berryman for Essential Energy T/A Essential Water.

Hearing details:

2015.

Sydney via telephone;

November 2015.

Printed by authority of the Commonwealth Government Printer

The matter before the Full Bench of the Fair Work Commission was a dispute between the Construction, Forestry, Mining and Energy Union (CFMEU) and Essential Energy T/A Essential Water regarding a proposed protected action ballot of employees of Essential Energy. The Commission was asked to determine whether the ballot was protected action as defined under the Fair Work Act 2009. The Full Bench, composed of members of the Commission, was tasked with resolving the legal issues arising from the application for an order to prevent the proposed ballot.

The central legal issue before the Commission was whether the proposed ballot constituted protected action under the Fair Work Act. The CFMEU argued that the ballot was a form of protected action as it related to a dispute between employees and their employer. In contrast, Essential Energy contended that the ballot was not protected action because it did not concern a dispute between employees and their employer but rather a dispute between employees and the employer's parent company, Essential Energy Holdings. The Commission had to decide whether the ballot was protected action by interpreting the relevant provisions of the Fair Work Act and applying the appropriate legal principles.

The Full Bench found that the proposed ballot was indeed protected action as it related to a dispute between employees and their employer. The Commission held that the nature of the dispute, which involved a proposed change in the employees' conditions of employment, was sufficient to establish a dispute between employees and their employer. The Commission further determined that the dispute was not invalidated by the fact that it involved the parent company of the employer, as the employees' employment was directly affected by the proposed change. The Full Bench concluded that the ballot was protected action and ordered that the proposed ballot be conducted in accordance with the provisions of the Fair Work Act.

The Full Bench's final orders were that the proposed ballot be conducted in accordance with the Fair Work Act, and that the application for an order to prevent the ballot be dismissed. The Commission found that the proposed ballot was protected action and that it was not in the interests of justice to prevent the ballot from proceeding. The Full Bench emphasised the importance of protecting the rights of employees to engage in protected action and the need for employers to comply with the provisions of the Fair Work Act in relation to such action.

Construction, Forestry, Mining and Energy Union v Essential Energy T/A Essential Water

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established