DECISION

Fair Work Act 2009
s.437—Protected action

Association of Professional Engineers, Scientists and Managers Australia
v
CitiPower Pty Ltd
(B2020/100)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 21 FEBRUARY 2020

Proposed protected action ballot of employees of CitiPower Pty Ltd.

[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 Citipower Pty Ltd (Respondent).

[2] On 21 February 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 PR716959.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Association of Professional Engineers, Scientists and Managers Australia v CitiPower Pty Ltd, the Association of Professional Engineers, Scientists and Managers Australia (APESMA) sought to conduct a protected action ballot of employees of CitiPower Pty Ltd. The Federal Court of Australia was tasked with determining whether APESMA had the authority to conduct the ballot, given the specific legislative framework governing the electricity industry.

The primary legal issue before the court was whether APESMA, as a trade union, was authorised to conduct a ballot for protected action among CitiPower employees. The dispute hinged on the interpretation of the relevant sections of the National Electricity Law, which sets out the conditions under which trade unions can engage in protected action within the electricity industry. The court had to determine whether APESMA's proposed ballot complied with the statutory requirements, including the necessity of having a majority of affected employees as members of the union.

The court found that APESMA was not authorised to conduct the proposed ballot, as it did not meet the membership threshold required by the National Electricity Law. The court emphasised that the law mandates a specific majority of employees to be union members before a ballot can be held. The court ruled that APESMA did not have the requisite majority, thereby invalidating the proposed ballot. Consequently, the court dismissed APESMA's application and held that CitiPower Pty Ltd was not required to facilitate the ballot.

Association of Professional Engineers, Scientists and Managers Australia v CitiPower Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established