DECISION

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

Association of Professional Engineers, Scientists and Managers, Australia, The
v
Hobsons Bay City Council
(B2020/144)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 12 MARCH 2020

Proposed protected action ballot of employees of Hobsons Bay City Council.

[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 the Hobsons Bay City Council (Respondent).

[2] On 11 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 Mr S Kelly 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 PR717404.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) lodged an application seeking authorisation to hold a protected action ballot for employees of Hobsons Bay City Council (the Council). The Council opposed the application, raising concerns about the potential impact on its ability to provide essential services and the implications for its relationship with other unions. The Commission was required to determine whether the proposed ballot could proceed, considering both the statutory criteria and the potential for industrial action.

The primary legal issues before the Commission involved whether the proposed protected action ballot complied with the relevant sections of the Fair Work Act 2009 (Cth). Specifically, the Commission needed to assess whether the ballot would result in protected action, which is defined as industrial action taken to enforce an industrial claim. Additionally, the Commission had to consider the potential impact of the ballot on the Council's ability to provide essential services and the implications for industrial relations, including the potential for multiple unions to engage in protected action concurrently.

The Commission determined that the proposed ballot met the statutory criteria for protected action. It found that the ballot was likely to result in industrial action aimed at enforcing an industrial claim, as the employees intended to take action to address their grievances. The Commission also considered the Council's concerns about the impact on essential services but concluded that these concerns did not outweigh the employees' right to take protected action. The Commission emphasised the importance of industrial action in the context of enforcing industrial claims and maintaining fair industrial relations. Given these findings, the Commission authorised the proposed ballot.

The Commission issued an order authorising APESMA to hold the proposed protected action ballot. The order specified the conditions under which the ballot could be conducted, including the timeframes and the information to be provided to the Council. The Commission also noted that the authorisation was subject to compliance with the relevant provisions of the Fair Work Act 2009 (Cth) and the Fair Work (Protected Action) Regulations 2013 (Cth).

Association of Professional Engineers, Scientists and Managers, Australia, The v Hobsons Bay 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