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

[2014] FWC 5619

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
(B2014/1250)

COMMISSIONER LEE

MELBOURNE, 15 AUGUST 2014

Application for a 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 12 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 statutory declaration of Mr Matthew Johnston, Acting Secretary, CPSU, the Community and Public Sector Union, dated 11 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 [PR554377] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Community and Public Sector Union (CPSU) filed an application before the Fair Work Commission (FWC) seeking approval for a protected action ballot of employees of the Tasmanian Water and Sewerage Corporation Pty Ltd trading as TasWater. The union argued that the employees were engaged in a dispute of interest in relation to a new enterprise agreement. TasWater opposed the application on the basis that the employees were not engaged in a dispute of interest. The FWC was required to determine whether the employees were engaged in a dispute of interest, and if so, whether the application should be approved.

The FWC held that the employees were engaged in a dispute of interest as they were seeking to negotiate a new enterprise agreement, which was a dispute of interest within the meaning of the Fair Work Act 2009 (Cth). The FWC found that the employees' claims were not frivolous or vexatious, and that there was a genuine issue to be determined between the parties. The FWC also held that the application should be approved as the union had satisfied the requirements of section 372 of the Fair Work Act 2009 (Cth).

The FWC approved the application and ordered that a ballot of the employees be held to determine whether they wished to take protected action in relation to the dispute of interest. The FWC noted that the approval of the ballot did not mean that the union was entitled to take protected action, and that any protected action taken would need to comply with the provisions of the Fair Work Act 2009 (Cth). The FWC also noted that the decision was not a determination of the merits of the dispute itself, and that any resolution of the dispute would need to be determined through further negotiations or other processes.

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