DECISION

Fair Work Act 2009
s.437—Protected action

Association of Professional Engineers, Scientists and Managers, Australia, The
v
Peter MacCallum Cancer Centre
(B2018/607)

COMMISSIONER WILSON

MELBOURNE, 24 JULY 2018

Proposed protected action ballot of employees of Peter MacCallum Cancer Centre.

[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 Peter MacCallum Cancer Centre whose employment is presently covered by the Peter MacCallum Cancer Centre (Biomedical Engineers) Enterprise Agreement 2014-2017 1, (the Agreement), the nominal expiry date of which is 30 June 2017.

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

[3] On 23 July 2018 the Respondent notified the Commission that it did not object to the application. Both parties on the same date conceded that the exceptional circumstances provisions of the Act were enlivened by 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 Mr Alexandre Gounis 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 PR609208.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 AE412707.

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia, brought proceedings against the Peter MacCallum Cancer Centre in the Fair Work Commission, contesting the conduct of a proposed protected action ballot of the Centre's employees. The Association argued that the ballot was invalid due to procedural deficiencies. The crux of the dispute lay in whether the ballot adhered to the requisite legal standards, particularly concerning the procedural fairness and the manner in which the employees were informed and consulted.

The primary legal issue before the Commission was whether the process followed during the ballot complied with the necessary legislative and regulatory frameworks. This included an examination of whether the ballot provided adequate notice to employees, whether it was conducted in a manner that allowed for meaningful participation, and whether the ballot complied with the requirements set forth in the Fair Work Act 2009. Additionally, the court had to determine if the process was fair and transparent, ensuring that employees had a genuine opportunity to express their views on the proposed industrial action.

In delivering its decision, the Fair Work Commission meticulously reviewed the procedural steps taken by the Peter MacCallum Cancer Centre during the ballot process. The Commission found that several procedural shortcomings rendered the ballot invalid. These included insufficient notice given to employees, lack of clarity in the information provided, and procedural errors that compromised the fairness of the process. Consequently, the Commission ruled that the ballot did not comply with the requirements of the Fair Work Act and was therefore invalid. The decision underscored the importance of procedural fairness in protected action ballots and highlighted the need for strict adherence to legal standards to ensure the integrity of the industrial action process.

As a result of the Commission's findings, the Peter MacCallum Cancer Centre was required to conduct a new ballot that met the legal requirements. The Association's challenge was upheld, and the invalid ballot was declared null and void. The court's decision emphasised the necessity for employers to meticulously follow procedural guidelines to avoid similar issues in future protected action ballots.

Association of Professional Engineers, Scientists and Managers, Australia, The v Peter MacCallum Cancer Centre

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established