CPSU, the Community and Public Sector Union v EnergyAustralia NSW Pty Ltd

[2023] FWC 675

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

CPSU, the Community and Public Sector Union
v

EnergyAustralia NSW Pty Ltd

(B2023/259)

VICE PRESIDENT CATANZARITI

SYDNEY, 21 MARCH 2023

Proposed protected action ballot of employees of EnergyAustralia NSW Pty Ltd

This is an application by the CPSU, the Community and Public Sector Union (SPSF Group) New South Wales Branch (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of EnergyAustralia NSW Pty Ltd (Respondent).

On 21 March 2023, the Fair Work Commission was advised that the Respondent did not oppose the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Ian Braithwaite of the Applicant declared on 20 March 2023, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An Order has been separately issued in PR760467.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Community and Public Sector Union, New South Wales Branch (CPSU) sought a protected action ballot order from the Fair Work Commission in relation to certain employees of EnergyAustralia NSW Pty Ltd. The application was made under section 437 of the Fair Work Act 2009. The dispute arose from the union's attempt to conduct a protected action ballot among its members employed by EnergyAustralia NSW Pty Ltd. The union claimed it had been genuinely trying to reach an agreement with the employer and met the statutory requirements for a ballot. EnergyAustralia NSW Pty Ltd did not oppose the application.

The primary legal issue before the Fair Work Commission was whether the union had satisfied the statutory requirements to hold a protected action ballot. This involved assessing whether the union had genuinely attempted to reach an agreement with the employer and if the notification period specified in section 443(1) of the Act had been met. The Commission had to consider the evidence provided by the union, specifically the statutory declaration of Ian Braithwaite, which detailed the union's bargaining efforts and adherence to the Act's provisions.

The Fair Work Commission, after reviewing the material, found that the union had indeed satisfied the conditions necessary to hold a protected action ballot. The union's statutory declaration, which outlined the steps taken in bargaining with the employer and demonstrated a genuine effort to reach an agreement, was deemed sufficient. The Commission was satisfied that the notification period had been met, and the union had complied with section 443(1) of the Act. Consequently, the application was granted, and an order was issued.

The Fair Work Commission ordered that a protected action ballot be held among the employees of EnergyAustralia NSW Pty Ltd, as requested by the CPSU. The decision was based on the evidence provided by the union, confirming their efforts to reach an agreement with the employer and compliance with the statutory requirements. The Commission's decision was communicated in a separate order issued in PR760467.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established