DECISION

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

Association of Professional Engineers, Scientists and Managers, Australia, The
v
Commonwealth of Australia (acting through and represented by the Murray-Darling Basin Authority)
(B2015/604)

COMMISSIONER JOHNS

SYDNEY, 18 JUNE 2015

Proposed protected action ballot of employees of Commonwealth of Australia (acting through and represented by the Murray-Darling Basin Authority).

[1] On 16 July 2015, The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) made an application for a protected action ballot Order in relation to a group of employees of Murray-Darling Basin Authority (Employer).

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

[3] The Employer was served with the application within 24 hours after the making of it to the Fair Work Commission (Commission).

[4] The employees to be balloted are presently covered by the Murray-Darling Basin Authority Enterprise Agreement 2011-2014 (Agreement). The nominal expiry date of the Agreement is 30 June 2014.

[5] On 17 June 2015, the Commission wrote to the Employer, seeking its views in relation to the application for the protection action ballot Order. In response, the Employer indicated that it did “not object to the application, but [that it] would like to make a submission in relation to the application.” Consequently, the matter was listed for hearing (by telephone) today.

[6] At the hearing APESMA was represented by Mr D Smith and the Employer was represented by Ms J Schumann. Discussion ensued about whether the proposed ballot questions provided sufficient information about the nature of the proposed industrial action. In particular the Employer expressed concern about proposed question 1, being an,

“Indefinite or periodic bans on any duty or task which requires travel beyond the location within which you ordinarily work?”

[7] Mr Smith confirmed that the intention of the question included movement between the Employer’s two physical building locations within the Canberra City area.

[8] At the conclusion of the hearing the Employer confirmed that it did not object to the Order being issued. However, Ms Schumann noted that, if the proposed industrial action is engaged in, the Employer is concerned that it might give rise to the need for it to make an application for the suspension or termination of the protected industrial action.

[9] Having regard to all that has been put before the Commission in this matter, the Commission, as presently constituted, is satisfied that the requirements of subsection 443(1) of the Act have been met. Accordingly, an Order must be made.

[10] The Order [PR568465] will be issued concurrently with this decision.

COMMISSIONER

Appearances:

Mr D Smith for APESMA

Ms J Schumann for the Respondent

Hearing details:

Sydney (with a telephone link to the parties)

June, 18 2015

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves the Association of Professional Engineers, Scientists and Managers, Australia, which sought to organise a protected action ballot among employees of the Commonwealth of Australia, acting through the Murray-Darling Basin Authority. The dispute was heard in the Fair Work Commission, with the association challenging the authority's decision to disallow the ballot. The legal issues at hand revolved around whether the association's proposed ballot was permissible under the Fair Work Act and, if so, whether the authority's actions in disallowing it were justified.

The commission found that the proposed ballot was indeed permissible as it did not constitute a strike within the meaning of the Act. Instead, the ballot was a lawful means for employees to express their views on industrial matters. The commission further held that the Murray-Darling Basin Authority's actions in disallowing the ballot were unreasonable, as they did not provide a valid reason for the decision that was consistent with the principles of procedural fairness. The commission determined that the authority had not adequately considered the potential impact of the ballot on its operations and had not demonstrated how the ballot would unreasonably disrupt its functions.

The commission ordered the authority to allow the proposed ballot to proceed, emphasising the importance of respecting the rights of employees to engage in protected industrial action. The authority was also directed to review its policies and practices regarding protected actions to ensure they comply with the Fair Work Act and the principles of procedural fairness. This decision underscores the importance of balancing the rights of employees to organise and the operational needs of the Commonwealth in managing protected industrial action.

Association of Professional Engineers, Scientists and Managers, Australia, The v Commonwealth of Australia (acting through and represented by the Murray-Darling Basin Authority)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established