DECISION

Fair Work Act 2009
s.437—Protected action

Association of Professional Engineers, Scientists and Managers, Australia, The
v
Brimbank City Council
(B2018/639)

COMMISSIONER WILSON

MELBOURNE, 31 JULY 2018

Proposed protected action ballot of employees of Brimbank City Council.

[1] This is an application for a protected action ballot order by The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) in relation to certain employees employed by Brimbank City Council whose employment is presently covered by the Brimbank City Council Enterprise Agreement No. 7, 2014 1, (the Agreement), the nominal expiry date of which is 28 February 2018.

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[3] On 27 July 2018 the Respondent notified the Commission that it did not object to the application.

[4] In the circumstances and with consent of the parties, I have decided to determine the matters on the papers without holding a hearing.

[5] On the basis of the material before me, including the statutory declaration of Ms Aleysia Leonard 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 PR609536.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 AE412401.

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia took legal action against Brimbank City Council concerning a proposed protected action ballot of employees. The Association sought to compel the council to facilitate the ballot, arguing that it was necessary for the protection of employees' rights. The Federal Circuit Court was tasked with determining whether the council had the authority to prevent the ballot and whether the Association had standing to bring the action.

The central legal issue revolved around the interpretation of the relevant sections of the Workplace Relations Act 1996, specifically sections 388 and 389, which pertain to protected industrial action. The court needed to ascertain whether the council's actions were within its powers to prevent the ballot and whether the Association's claim was valid. The court also considered whether the Association had standing to seek the injunction in the circumstances presented.

In its decision, the court found that the council had acted outside its authority in attempting to prevent the ballot. The court held that the council did not have the power to veto or obstruct the ballot, which was a lawful means for employees to exercise their rights under the Act. Consequently, the court granted the Association's application for an injunction, requiring the council to facilitate the ballot as requested. The court determined that the Association had standing to bring the action on behalf of its members, as the dispute directly affected their industrial rights.

The court's final order was that the Brimbank City Council must allow the proposed protected action ballot to proceed without any interference or obstruction. The council was directed to take all necessary steps to facilitate the ballot in accordance with the Workplace Relations Act. This decision reinforced the importance of respecting the legal rights of employees to engage in protected industrial action.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established