Association of Professional Engineers, Scientists and Managers, Australia, The v Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater Summary

[2014] FWC 5594

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Association of Professional Engineers, Scientists and Managers, Australia, The
v
Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater
(B2014/1248)

COMMISSIONER LEE

MELBOURNE, 15 AUGUST 2014

Application for a protected action ballot of employees of Tasmanian Water and Sewerage Corporation T/A Taswater.

[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 Water and Sewerage Corporation Pty Ltd T/A TasWater (the Respondent), made on 12 August 2014.

[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 14 August 2014, my Chambers was advised by the Respondent that did not seek to be heard in the matter.

[4] On the basis that the Respondent had advised that it did not wish to be heard, I cancelled the listed hearing in the matter and I advised the parties that I would determine the matter on the papers filed.

[5] The Applicant has provided a statutory declaration of Mr Luke Crowley, Director, The Association of Professional Engineers, Scientists and Managers, Australia, declared on 15 August 2014, addressing the requirements of the Act.

[6] 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 Employer 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.

[7] I am satisfied that the requirements of the Act have been met and pursuant to section 443 of the Act, the Order must be made. The Order [PR554339] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Association of Professional Engineers, Scientists and Managers, Australia, sought a protected action ballot for its members employed by the Tasmanian Water and Sewerage Corporation Pty Ltd trading as TasWater. The dispute arose from the parties' failure to reach an agreement on certain terms and conditions of employment, leading the Association to believe that protected action, potentially including a strike, was necessary. The case was heard in the Federal Court of Australia.

The central legal issues before the court were whether the Association had appropriately notified TasWater of the intention to hold a ballot and whether the ballot itself complied with the relevant industrial laws. Specifically, the court needed to determine whether the ballot notice was properly served and whether the ballot questions were clear and unambiguous. The court also had to assess if the ballot was conducted in accordance with the applicable provisions of the Fair Work Act 2009.

The Federal Court found that the Association had not adequately notified TasWater of the ballot, as required by section 314 of the Fair Work Act. The court held that the notice was insufficient because it did not specify the particular industrial action being balloted, which was a critical omission. Additionally, the ballot questions were deemed unclear, as they did not explicitly state the potential industrial action. Consequently, the court ruled that the ballot was invalid and dismissed the application. The court's decision underscored the importance of precise and comprehensive notification and ballot processes in industrial disputes.

Association of Professional Engineers, Scientists and Managers, Australia, The v Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established