United Workers' Union v South Australian Water Corporation T/A SA Water

[2024] FWC 3262

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

South Australian Water Corporation T/A SA Water

(B2024/1526)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 25 NOVEMBER 2024

Proposed protected action ballot of employees of South Australian Water Corporation trading as SA Water

This is an application by the United Workers’ Union (UWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the South Australian Water Corporation trading as SA Water (SA Water or Employer).

I note that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)[1] have each made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 22 November 2024, the Commission was advised that the Employer, in effect, did not object to the Application.

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

On the basis of the material before me, including the declaration of Darren Roberts, Organiser, setting out the steps taken by the UWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with SA Water, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 9 December 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR781621.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matters. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] B2024/1510 and B2024/1512, respectively.

[2] This is, in effect, 10 working days from the making of the Order and was the specific date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was presented with an application by the United Workers' Union (UWU) under section 437 of the Fair Work Act 2009, seeking an order for a protected action ballot among certain employees of the South Australian Water Corporation trading as SA Water (SA Water). The UWU aimed to conduct this ballot in the context of negotiations for a proposed enterprise agreement. The Commission also noted similar applications by two other unions, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Australian Manufacturing Workers’ Union (AMWU), concerning the same enterprise agreement. SA Water did not object to the UWU's application, prompting the Commission to proceed with the decision on the submitted documents without the need for a hearing.

The legal issues before the FWC included determining whether the UWU had satisfied the statutory requirements for a protected action ballot under section 443 of the Act. Specifically, the Commission had to assess if the UWU had genuinely attempted to reach an agreement with SA Water and if all procedural prerequisites for the ballot had been met. Additionally, the Commission had to confirm the appointment of Democratic Outcomes Pty Ltd as the authorised ballot agent and establish the closing date for the ballot, which would also serve as the date for the compulsory conciliation conference.

In making its decision, the Commission found that the UWU had indeed fulfilled the requirements of section 443 of the Act. The Commission was satisfied with the evidence provided by the UWU, including the declaration of Darren Roberts, the Organiser, which demonstrated the union's efforts to negotiate in good faith with SA Water. The Commission also confirmed that Democratic Outcomes Pty Ltd was duly authorised to conduct the ballot. Consequently, the Commission granted the UWU's application and set 9 December 2024 as the closing date for the ballot, which also established the ballot period for the compulsory conciliation conference under section 448A(2) of the Act. A separate order was issued for the conciliation conference, which would involve all bargaining representatives of the proposed enterprise agreement.

The FWC also made orders for the conciliation conference, requiring the attendance of all bargaining representatives and issuing directions to ensure meaningful negotiations. This case will now be assigned to another member of the Commission to oversee the conciliation conference and related matters.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established