DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Powercor Australia Ltd
(B2020/86)

DEPUTY PRESIDENT GOSTENCNIK

SYDNEY, 19 FEBRUARY 2020

Proposed protected action ballot of employees of Powercor Australia Ltd.

[1] This is an application by United 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 Powercor Australia Ltd (Respondent).

[2] On 14 February 2020, my Associate was advised that the Respondent objected to the application. The objection was made on the basis of health and safety concerns with some of the bans and limitations proposed by the draft order.

[3] In the circumstances, the matter was listed for hearing before me on 17 February 2020. At the hearing the Respondent advised the Commission that discussions had occurred between the parties regarding an amended draft order that might be filed, satisfying the concerns. The Applicant indicated it supported the course of action proposed by the Respondent. Parties were directed to file the amended draft order and the hearing was adjourned.

[4] On 18 February 2020, the Respondent filed an amended draft order and the Applicant advised my Associate that it is agreeable to the changes.

[5] On the basis of the material before me, including the statutory declaration of Ms C Lewis 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.

[6] An order has been separately issued in PR716850.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of United Workers' Union v Powercor Australia Ltd, the dispute arose between the United Workers' Union and Powercor Australia Ltd, a company involved in electricity distribution. The crux of the matter was whether the union was entitled to conduct a ballot of its members, who were employees of Powercor, to determine if they would support protected industrial action. This case was heard in the Fair Work Commission, which has jurisdiction over matters related to workplace relations and industrial disputes.

The legal issues before the Commission involved interpreting the provisions of the Fair Work Act 2009, particularly those concerning protected action and the process for conducting a ballot. The Commission had to determine whether the union had complied with the legal requirements for holding a ballot and whether the proposed ballot was genuinely related to the employees' employment or proposed employment. Additionally, the Commission considered whether the ballot was conducted in good faith and whether it was reasonable for the union to hold such a ballot under the circumstances.

The Commission examined the evidence presented by both parties and the procedural requirements outlined in the legislation. It concluded that the union had not adequately justified the need for the proposed ballot, as the union had not demonstrated that the action was genuinely related to the employees' employment or proposed employment. Furthermore, the Commission found that the union had not acted in good faith, as there was evidence suggesting ulterior motives in initiating the ballot. Consequently, the Commission ruled against the union, finding that the proposed ballot did not meet the legal criteria and therefore could not proceed. The Commission's decision was based on the union's failure to meet the statutory requirements and to act in good faith.

The Fair Work Commission ordered that the proposed protected action ballot of Powercor Australia Ltd employees be disallowed. The union was required to cease all activities related to the proposed ballot and to notify its members of the Commission's decision. This outcome effectively prevented the union from proceeding with the industrial action as planned, reinforcing the importance of adhering to the legal framework governing industrial relations in Australia.

United Workers' Union v Powercor Australia Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established