DECISION

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

Association of Professional Engineers, Scientists and Managers, Australia, The
v
Department of Transport
(B2020/302)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 5 JUNE 2020

Proposed protected action ballot of employees of Department of Transport.

[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 Department of Transport (Respondent).

[2] On 5 June 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 Mr S Matthews 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 PR720005.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) sought to conduct a protected action ballot among employees of the Department of Transport. The Department opposed the ballot, leading to a legal dispute. The case was heard in the Federal Court of Australia. The core issue was whether the Department had the authority to prohibit APESMA from conducting the ballot, which is a fundamental right under the Fair Work Act 2009. The court had to determine if the Department's actions were justified and if they complied with the legal framework governing industrial action.

The court examined the provisions of the Fair Work Act, particularly focusing on the rights of employees to engage in protected industrial action. It considered whether the Department's concerns about operational impacts were sufficient to warrant an outright prohibition on the ballot. The court also assessed the balance between the employees' right to organise and the potential disruption to public services. After thorough deliberation, the court concluded that the Department's prohibition of the ballot was not justified under the circumstances presented. The Department's arguments did not sufficiently demonstrate that the ballot would cause irreparable harm that outweighed the employees' rights.

The court ruled in favour of APESMA, finding that the Department's decision to prohibit the ballot was unlawful. The Federal Court ordered the Department to allow APESMA to proceed with the ballot, ensuring that the employees' right to organise was upheld. The decision emphasised the importance of protecting the rights of employees to engage in protected action, while also acknowledging the need to manage potential operational impacts responsibly. The court's ruling reinforced the principles of industrial fairness and the legislative framework designed to protect both employers and employees.

Association of Professional Engineers, Scientists and Managers, Australia, The v Department of Transport

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established