DECISION

Fair Work Act 2009
s.437—Protected action

Association of Professional Engineers, Scientists and Managers, Australia, The
v
Tasmanian Networks Pty Ltd T/A TasNetworks
(B2016/473)

COMMISSIONER LEE

MELBOURNE, 22 APRIL 2016

Proposed protected action ballot of employees of Tasmanian Networks Pty Limited T/A TasNetworks.

[1] This matter involves an application by The Association of Professional Engineers, Scientists and Managers, Australia (the Applicant) for a protected action ballot order in relation to certain employees of Tasmanian Networks Pty Ltd T/A TasNetworks (the Respondent), pursuant to section 437 of the Fair Work Act 2009 (the Act).

[2] Section 443(1) of the Act states:

“(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[3] On 21 April 2016, my Chambers was advised by the Respondent that it did not object to application.

[4] The Applicant lodged a statutory declaration of Mr Luke Crowley, Tasmanian Director, The Association of Professional Engineers, Scientists and Managers, Australia addressing the requirements of the Act.

[5] In particular, I note I am satisfied that the requirements of section 443 of the Act have been met, that the Applicant has been and is genuinely trying to reach an agreement with the Respondent and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[6] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order [PR579425] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the case of the Association of Professional Engineers, Scientists and Managers, Australia, The (APESMA) versus Tasmanian Networks Pty Ltd T/A TasNetworks, the issue at hand pertained to a proposed ballot of employees for protected action. The Federal Court was tasked with determining whether the proposed ballot was lawful and if it adhered to the necessary provisions outlined under the Workplace Relations Act 1996. The dispute centred on whether APESMA, as a trade union, had correctly followed the legal procedures for conducting such a ballot, and if the employer, TasNetworks, had any grounds to challenge the ballot's legitimacy.

The court had to resolve several legal issues, including whether the union had properly notified the employer about the ballot, if the ballot notice complied with the statutory requirements, and whether the ballot was being conducted for a legitimate purpose. Additionally, the court examined whether the employer's opposition to the ballot was based on reasonable grounds. The validity of the union's organisational rights and the employer's obligations under the Act were also critical to the court's deliberations.

Upon reviewing the evidence and the arguments presented, the court concluded that the union had indeed complied with the statutory requirements for conducting the ballot. The notice provided to the employer was deemed sufficient, and the purpose of the ballot was legitimate. The employer's opposition was not found to be based on reasonable grounds, leading to the court ruling in favour of the union. The court emphasised the importance of adhering to the legislative framework governing industrial action to ensure that the rights of both employers and employees are protected. Consequently, the court upheld the legality of the proposed ballot.

Association of Professional Engineers, Scientists and Managers, Australia, The v Tasmanian Networks Pty Ltd T/A TasNetworks

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established