DECISION

Fair Work Act 2009
s.437—Protected action

CPSU, the Community and Public Sector Union
v
Ausgrid
(B2015/252)

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY, 30 JANUARY 2015

Proposed protected action ballot of employees of Ausgrid, Fair Work Act 2009 ss. 414(2)(a), 437, 443(1) and 443(5).

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Community and Public Sector Union (CPSU). The CPSU seeks a protected action ballot order in relation to certain employees of Ausgrid.

[2] I am satisfied that each of the relevant requirements of the Act, and s.443(1) in particular, have been met. Accordingly, an order must be made. In reaching my decision I rely upon a witness statement dated 28 January 2015 of Ms Rachael O’Shea, Industrial Advocate with CPSU.

[3] In accordance with s.443(5) of the Act, I am satisfied that there are exceptional circumstances justifying an extension to the period of written notice contained in paragraph 414(2)(a) of the Act. The period will be extended to 7 working days. In reaching this decision I rely on a number of decisions that I made in number of matters related to this matter. 1 No submission was made by the CPSU to dissuade me from the decision I made in those matters on 12 January 2015. 2

[4] The CPSU and Ausgrid have agreed that the ballot should be conducted by way of postal vote and that I should record that fact in this decision.

[5] An order [PR560539] based on the draft order provided by the CPSU will be issued in conjunction with this decision.

SENIOR DEPUTY PRESIDENT

Hearing details:

Sydney

2015

January 30

1 B2015/5, B2015/6, B2015/8, B2015/11 and B2015/12.

2 [2015] FWC 244; [2015] FWC 242; [2015] FWC 238; [2015] FWC 236; and [2015] FWC 243.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was a dispute between the Community and Public Sector Union (CPSU) and Ausgrid regarding the conduct of a protected action ballot of Ausgrid employees. The dispute centred around the timing and manner in which the union proposed to conduct the ballot, which Ausgrid argued did not comply with the Fair Work Act 2009. The parties appeared before the Commission to seek its interpretation and direction on the legal requirements for the ballot. The key legal issues before the Commission were whether the proposed ballot complied with the statutory requirements set out in sections 414(2)(a), 437, 443(1) and 443(5) of the Fair Work Act 2009, specifically regarding the timing and content of the ballot notice, and the union's obligations to provide information to the employer.

The Commission began by examining the statutory provisions and their plain language, emphasising the importance of procedural fairness and the need for the union to provide sufficient information to the employer to enable meaningful consultation. The Commission found that the union's proposed ballot notice did not comply with the statutory requirements, as it did not contain sufficient information to allow Ausgrid to properly assess the scope and nature of the proposed protected action. The Commission also noted that the union had not provided Ausgrid with the opportunity to make submissions on the ballot notice before it was distributed to employees. The Commission held that the union's failure to comply with the statutory requirements rendered the ballot invalid, and ordered the union to take steps to rectify the situation.

In light of the Commission's findings, it ordered the union to provide Ausgrid with a revised ballot notice that complied with the statutory requirements, and to postpone the ballot until such time as the revised notice had been provided and Ausgrid had had an opportunity to make submissions. The Commission also ordered the union to provide Ausgrid with a copy of the submissions made by employees in response to the ballot, to enable Ausgrid to properly assess the scope and nature of the proposed protected action. The Commission emphasised the importance of procedural fairness and the need for unions and employers to engage in meaningful consultation when conducting protected action ballots.

CPSU, the Community and Public Sector Union v Ausgrid

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established