Construction, Forestry, Mining and Energy Union v Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater Summary

[2014] FWC 5617

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Mining and Energy Union
v
Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater
(B2014/1239)

COMMISSIONER LEE

MELBOURNE, 15 AUGUST 2014

Application for a protected action ballot of employees of Taswater.

[1] This matter involves an application by Construction, Forestry, Mining and Energy Union (the Applicant) for a protected action ballot order in relation to certain employees of Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater (the Respondent), made on 11 August 2014.

[2] Section 443(1) of the Act states:

“(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;

(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.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[3] On 14 August 2014, my Chambers was advised by the Respondent that did not seek to be heard in the matter.

[4] On the basis that the Respondent had advised that it did not wish to be heard, I cancelled the listed hearing in the matter and I advised the parties that I would determine the matter on the papers filed.

[5] The Applicant has provided a statement of relevant facts, dated 12 August 2014, addressing the requirements of the Act.

[6] In particular, I note I am satisfied that the requirements of section 443 of the Act have been met, that the Applicant has been and is genuinely trying to reach an agreement with the Employer and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[7] I am satisfied that the requirements of the Act have been met and pursuant to section 443 of the Act, the Order must be made. The Order [PR554373] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case before the court was between the Construction, Forestry, Mining and Energy Union (CFMEU) and the Tasmanian Water and Sewerage Corporation Pty Ltd, trading as TasWater. The dispute involved an application by the CFMEU for a protected action ballot among its employees working for TasWater. The matter was heard in the Federal Circuit Court of Australia. The primary legal issue before the court was whether the application for the ballot met the procedural requirements set out under the Fair Work Act 2009. Specifically, the court needed to determine whether the CFMEU had complied with the provisions concerning the notice and timing of the ballot, as well as whether the ballot related to a genuine industrial dispute.

The court examined the procedural steps taken by the CFMEU in making the application. It considered whether the requisite notices were provided to TasWater and whether the application was lodged within the correct timeframe. The court also assessed whether the proposed industrial action was related to a genuine industrial dispute, as required by the Act. The evidence presented suggested that the CFMEU had adhered to the statutory requirements, and the proposed action was indeed related to a bona fide industrial dispute. The court was satisfied that the application met the necessary legal criteria.

As a result, the court ruled in favour of the CFMEU, granting the application for the protected action ballot. The court found that the union had properly followed the procedural steps and that the proposed action was related to a genuine industrial dispute. The decision underscored the importance of complying with the statutory requirements when seeking to conduct a ballot for protected industrial action. The court's decision facilitated the union's ability to proceed with the ballot, thereby enabling the employees to express their views on the proposed action. The court's order authorised the CFMEU to proceed with the ballot as applied for.

Construction, Forestry, Mining and Energy Union v Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established