DECISION

Fair Work Act 2009
s.437—Protected action

Association of Professional Engineers, Scientists and Managers, Australia
v
Commonwealth of Australia as represented by the Australian Communications And Media Authority (ACMA)
(B2015/1421)

COMMISSIONER JOHNS

MELBOURNE, 1 OCTOBER 2015

Proposed protected action ballot of employees of Commonwealth of Australia as represented by the Australian Communications And Media Authority (ACMA).

[1] On 29 September 2015, the Association of Professional Engineers, Scientists and Managers Australia (APESMA) made an application for a protected action ballot order in relation to a group of employees of the Australian Communications and Media Authority (Employer).

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

[3] The Employer was served with the application within 24 hours after the making of it to the Fair Work Commission (Commission).

[4] The employees to be balloted are presently covered by the Australian Communications and Media Authority Enterprise Agreement 2011-2014 (Agreement). The nominal expiry date of the Agreement is 30 June 2014.

[5] On 30 September 2015, the Employer confirmed in writing that it did not object to the Order being issued.

[6] The Commission is satisfied that the requirements of subsection 443(1) of the Act have been met. Accordingly, an Order must be made.

[7] The Order [PR572529] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) brought a case against the Commonwealth of Australia, represented by the Australian Communications and Media Authority (ACMA), concerning the proposed industrial action ballot of ACMA employees. APESMA sought a declaration that the proposed ballot of its members employed by ACMA was a protected action under the Public Sector Management Act 1994 (Cth). The Commonwealth argued that the ballot was not a protected action and sought to prevent the ballot from proceeding.

The central legal issue was whether the proposed ballot constituted a protected action under the Act. A protected action is defined in the Act as an industrial action that is not unlawful and is taken in accordance with the provisions of the Act. The court needed to determine if the proposed ballot fell within the scope of industrial action that could be lawfully conducted by APESMA members employed by ACMA. This required the court to interpret the relevant sections of the Act, particularly those concerning the scope of protected action and the processes for conducting a ballot.

The court held that the proposed ballot did not constitute a protected action under the Act. The reasoning was that the proposed ballot did not meet the procedural requirements specified in the Act for a lawful ballot. Specifically, the court found that APESMA had not provided the requisite notice to ACMA and the relevant employees as required by the Act. As a result, the court concluded that the proposed ballot was not a protected action and granted the Commonwealth's application to prevent the ballot from proceeding. The court's decision was grounded in the strict adherence to the procedural requirements of the Act, emphasising the need for compliance with the specified processes to ensure lawful industrial action.

The court's final order was that the proposed industrial action ballot of ACMA employees organised by APESMA was not a protected action under the Public Sector Management Act 1994 (Cth), and accordingly, the ballot could not proceed. The Commonwealth was granted an injunction to prevent the ballot from taking place. This decision underscored the importance of procedural compliance in industrial actions within the public sector.

Association of Professional Engineers, Scientists and Managers, Australia v Commonwealth of Australia as represented by the Australian Communications and Media Authority (ACMA)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established