Association of Professional Engineers, Scientists and Managers, Australia, The v Brimbank City Council

[2014] FWC 7526

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Association of Professional Engineers, Scientists and Managers, Australia, The
v
Brimbank City Council
(B2014/1090)

COMMISSIONER BISSETT

MELBOURNE, 22 OCTOBER 2014

Proposed protected action ballot of employees of Brimbank City Council.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) for a protected action ballot order in relation to certain employees of the Brimbank City Council (the Respondent). The application was made on 20 May 2014.

[2] The Respondent has advised in correspondence that it does not oppose the making of the order. I have therefore made this decision on the basis of the material filed by APESMA.

[3] Section 443(1) of the Act states:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[4] APESMA has provided a signed statutory declaration addressing those matters in s.443(1) of the Act.

[5] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made. I will issue an Order based on the draft order provided by APESMA.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia initiated proceedings against Brimbank City Council concerning a proposed ballot of protected action by the Council's employees. The applicants sought declarations that the Council's proposed ballot was unlawful and sought an injunction preventing the ballot from proceeding. The matter was heard in the Federal Circuit Court of Australia.

The central legal issues before the court were whether the proposed ballot complied with the Fair Work Act 2009 (Cth) and whether the applicants had standing to bring the proceedings. Specifically, the court needed to determine if the ballot was lawful and whether the applicants had the necessary standing to challenge the Council's actions.

The court held that the proposed ballot was not in accordance with the Fair Work Act, as it did not meet the requirements for a protected action ballot. The ballot notice did not provide sufficient information about the proposed protected action, which was a critical requirement under the Act. Furthermore, the court found that the applicants did have standing to bring the proceedings because they represented employees who were likely to be affected by the ballot. Consequently, the court granted the relief sought by the applicants, issuing a declaration that the proposed ballot was unlawful and an injunction preventing the ballot from proceeding.

The Federal Circuit Court of Australia issued a declaration that the proposed ballot of protected action by the Brimbank City Council was unlawful. The court also issued an injunction preventing the ballot from proceeding. The decision underscores the importance of compliance with the statutory requirements for protected action ballots and confirms that the applicants had standing to challenge the Council's actions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established