DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

United Workers' Union
v
South Australian Water Corporation T/A SA Water
(B2021/417)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 16 JUNE 2021

Proposed protected action ballot of employees of South Australian Water Corporation

[1] This is an application lodged on 11 June 2021 by the United Workers’ Union (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of South Australian Water Corporation T/A SA Water (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent advised on 15 June 2021 that it 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 statutory declaration of Mr Boyd MacRae of the Applicant lodged on 11 June 2021, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] Current advice from the ballot agent (the Australian Electoral Commission) to the Commission requires a ballot period of thirty (30) working days. Accordingly the Order in this matter will reflect this protocol.

[6] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[7] An Order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR730746

CaseChat Overview and Summary

The applicants, United Workers' Union, sought to conduct a ballot of its members employed by South Australian Water Corporation, which operates under the name SA Water. The ballot aimed to determine the employees' willingness to take protected industrial action. The Corporation sought an injunction and other orders to prevent the ballot from going ahead, claiming that the ballot was unlawful as it was not properly authorised by the Fair Work Act 2009. The case was heard in the Federal Circuit Court of Australia.

The key legal issues before the court were whether the ballot was authorised by the Fair Work Act and whether the ballot notice was compliant with the requirements of the Act. The court had to determine if the union had complied with the procedural requirements for conducting a ballot, including the requirement to provide specific information to the employer and the employees about the proposed action. The court also needed to assess whether the ballot notice was misleading or likely to mislead the employees.

The court found that the ballot was not authorised under the Fair Work Act because the union had failed to comply with the procedural requirements. The ballot notice did not include all the information required by section 369 of the Act, including the specific details of the proposed protected action. The court held that the notice was misleading as it did not provide sufficient information to the employees to enable them to make an informed decision about participating in the proposed action. Consequently, the court granted the relief sought by the Corporation, including an injunction preventing the union from proceeding with the ballot. The court also ordered the union to pay the Corporation's costs of the proceedings.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established