DECISION

Fair Work Act 2009
s.437—Protected action

Association of Professional Engineers, Scientists and Managers, Australia, The
v
Australian Nuclear Science and Technology Organisation
(B2020/129)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 3 MARCH 2020

Proposed protected action ballot of employees of Australian Nuclear Science and Technology Organisation.

[1] This is an application by The Association of Professional Engineers, Scientists and Managers, Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Australian Nuclear Science and Technology Organisation (Respondent).

[2] On 3 March 2020, 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 statutory declaration of Ms E Parkinson 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 PR717238.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) and the Australian Nuclear Science and Technology Organisation (ANSTO). The dispute centred on a proposed protected action ballot by the employees of ANSTO, which APESMA sought to conduct. The matter was heard by the Fair Work Commission, an independent statutory body with jurisdiction over employment matters in Australia.

The primary legal issue the Commission had to address was whether the proposed ballot was consistent with the requirements of the Fair Work Act 2009. Specifically, the Commission examined whether the ballot notice was valid, if the requisite 24-hour notice period had been observed, and whether the ballot notice complied with the statutory notice provisions. Additionally, the Commission needed to determine whether the ballot was intended to be a protected action under the Act and if the proposed action was related to a workplace matter.

The Commission found that the proposed ballot notice was indeed valid and met the statutory requirements. The notice was issued within the stipulated 24-hour period and contained all the necessary information as required by the Act. The Commission concluded that the proposed ballot was intended to be a protected action and that the proposed action related to a workplace matter, specifically concerning the employees' terms and conditions of employment. Given these findings, the Commission upheld the validity of the proposed ballot, allowing it to proceed as planned.

The Commission's final order was that the proposed ballot by APESMA on behalf of its members employed by ANSTO was valid and could proceed in accordance with the provisions of the Fair Work Act. This decision affirmed the rights of the employees and their representative association to conduct protected industrial action in pursuit of their workplace-related objectives.

Association of Professional Engineers, Scientists and Managers, Australia, The v Australian Nuclear Science and Technology Organisation

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established