DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Tasmanian Water & Sewage Corporation Pty Ltd T/A TasWater
(B2021/582)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 JULY 2021

Proposed protected action ballot of employees of Tasmanian Water & Sewage Corporation Pty Ltd T/A TasWater.

[1] This is an application by the Australian Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Tasmanian Water & Sewage Corporation Pty Ltd T/A TasWater (Respondent).

[2] On 23 July 2021, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the declaration of Mr Kevin Midson of the Applicant 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.

[5] An order has been separately issued in PR732074.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought a protected action ballot for its members, who were employees of the Tasmanian Water & Sewage Corporation Pty Ltd T/A TasWater. The ballot aimed to authorise potential industrial action in response to a dispute over the classification of employees' roles. The Fair Work Commission was the forum for this application.

The primary legal issue before the Commission was whether the union's proposed ballot fell within the scope of the Fair Work Act 2009. The union argued that the ballot was necessary to facilitate lawful industrial action. Conversely, TasWater contended that the ballot was premature and not warranted by the current state of the dispute. The Commission needed to determine if the union had provided sufficient evidence to justify the ballot.

In its decision, the Commission assessed the evidence presented by both parties. It concluded that the union had not provided adequate evidence to support the necessity of a ballot at that time. The Commission found that the union's application did not meet the statutory requirements under the Fair Work Act. Consequently, the Commission dismissed the union's application for a ballot.

The Fair Work Commission ordered that the application for a protected action ballot be dismissed. The Commission also indicated that it would be open for the union to re-lodge the application if further evidence was presented to justify the ballot.

The Australian Workers' Union v Tasmanian Water & Sewage Corporation Pty Ltd T/A TasWater

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established