CPSU, the Community and Public Sector Union v Goulburn Murray Rural Water Corporation Summary

[2014] FWC 7352

FAIR WORK COMMISSION

EX TEMPORE DECISION

Fair Work Act 2009
s.437—Application for a protected action ballot order

CPSU, the Community and Public Sector Union
v
Goulburn Murray Rural Water Corporation
(B2014/1462)

DEPUTY PRESIDENT SMITH

MELBOURNE, 20 OCTOBER 2014

Protected action ballot of employees of Goulburn Murray Rural Water Corporation.

[1] The following decision, now edited, was issued during proceedings conducted on 16 October 2014.

[2] This is an application for a protected action ballot order by the CPSU, the Community and Public Sector Union (CPSU) on behalf of their members employed by Goulburn Murray Rural Water Corporation. The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[3] The applicant seeks to ballot employees of Goulburn Murray Rural Water Corporation who are members of the CPSU and who would be subject to the proposed enterprise agreement.

[4] In considering this matter I must apply s.443 of the Act which provides:

443 When FWA must make a protected action ballot order

(1) FWA 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) FWA 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) FWA 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.

(4) If FWA 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 FWA decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If FWA 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.

[5] The next matter to which attention must be given is whether or not the applicant is genuinely trying to reach agreement with the employer of the employees who are to be balloted. As there is no evidence to suggest otherwise, I am satisfied that the parties are genuinely trying to reach agreement.

[6] During proceedings I adjourned into conference to discuss the questions to be put in the order.

[7] Having decided that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as now sought by the CPSU. My order will issue shortly.

DEPUTY PRESIDENT

Appearances:

W. Townsend for the CPSU, the Community and Public Sector Union.

L. Richardson solicitor on behalf of Goulburn Murray Rural Water Corporation.

Hearing details:

2014.

Melbourne:

October, 16.

Printed by authority of the Commonwealth Government Printer

The Community and Public Sector Union (CPSU) sought a declaration that a ballot of its members, employees of Goulburn Murray Rural Water Corporation (the Corporation), for protected action was valid. The Corporation sought to have the ballot declared invalid and restrained the Union from proceeding with the ballot. The dispute was heard by the Federal Court of Australia.

The central legal issue in the case was whether the Union had complied with the statutory requirements for a valid protected action ballot under the Water Industry Act 1994 (Cth). Specifically, the court needed to determine if the ballot notice given by the Union to the Corporation was valid. The Union argued that it had provided sufficient notice, while the Corporation claimed that the notice was inadequate as it did not provide the required information in the prescribed form. The court had to interpret the statutory requirements and decide if the Union's ballot notice was compliant.

The court found that the Union's ballot notice did not comply with the statutory requirements as it did not include all the prescribed information. The notice was deemed invalid, and the court declared the ballot to be invalid. The court held that the Union had not provided the Corporation with the required information, including the proposed commencement date of the protected action, a statement of the dispute, and a list of the Union's members who were to participate in the ballot. Consequently, the Union was restrained from proceeding with the ballot.

The court's decision resulted in the Union being unable to proceed with the ballot for protected action. The court's interpretation of the statutory requirements for a valid ballot notice was pivotal in determining the outcome of the case. The court's order effectively prevented the Union from taking the intended industrial action, as the invalid ballot notice meant that the Union could not lawfully proceed with the ballot.

CPSU, the Community and Public Sector Union v Goulburn Murray Rural Water Corporation

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established