CPSU, the Community and Public Sector Union v Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater

[2014] FWC 8369

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

CPSU, the Community and Public Sector Union
v
Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater
(B2014/1608)

COMMISSIONER LEE

MELBOURNE, 21 NOVEMBER 2014

Application for a proposed protected action ballot of employees of Taswater.

[1] This matter involves an application by CPSU, the Community and Public Sector 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 18 November 2014.

[2] Section 443(1) of the Fair Work Act 2009 (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 20 November 2014, my Chambers was advised by the Respondent that it had no objections to the application in this matter.

[4] On the basis that the Respondent had advised that it had no objections, I have determined to deal with the matter on the papers filed.

[5] The Applicant lodged with the application a statutory declaration of Mr Matthew Johnston, Assistant Secretary, CPSU, the Community and Public Sector Union, 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 Respondent 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] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order [PR558103] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Community and Public Sector Union (CPSU) sought to hold a protected action ballot among employees of Taswater, the Tasmanian Water and Sewerage Corporation. The union aimed to gauge employee support for potential industrial action in response to ongoing disputes over employment terms and conditions. The matter was brought before the Fair Work Commission (FWC), Australia's independent workplace relations tribunal.

The legal issues before the FWC centred on whether the union had complied with the procedural requirements set forth in the Fair Work Act 2009 (Cth) for conducting a protected action ballot. Specifically, the court needed to determine whether the union's ballot notice was sufficiently detailed and whether it had provided the necessary information to employees about the nature and potential consequences of the proposed action. Additionally, the court examined whether the union had taken reasonable steps to ensure that employees were informed about the ballot and had the opportunity to participate.

The FWC concluded that the union had not met the statutory requirements for a protected action ballot. The commission found that the ballot notice did not contain all the mandatory information as required under the Fair Work Act. The notice failed to include details about the specific terms and conditions being contested, as well as the potential impact on employees and service delivery. Consequently, the FWC rejected the union's application for a ballot, noting that the deficiencies in the notice meant it could not be considered compliant with the legislative framework. The union's application was dismissed, and the proposed ballot could not proceed.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established