Association of Professional Engineers, Scientists and Managers, Australia v CS Energy Limited

[2011] FWA 5106

[2011] FWA 5106

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Association of Professional Engineers, Scientists and Managers, Australia
v
CS Energy Limited
(B2011/173)

DEEGAN, COMMISSIONER BRISBANE, 3 AUGUST 2011

Proposed protected action ballot of employees of CS Energy Limited.

Introduction

[1] This is an application for a protected action ballot of members of the Association of Professional Engineers, Scientists and Managers, Australia known as “APESMA” (APESMA) employed by CS Energy Limited (CS Energy) at the Callide Power Station in Queensland.

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (Act). APESMA seeks to ballot employees of CS Energy who are members of APESMA and who would be covered by the proposed enterprise agreement.

[3] This application was filed on 2 August 2011. It follows similar applications lodged in respect of the same employer and the same worksite by other employee organisations. As the earlier applications were not opposed by CS Energy I instructed my associate to contact the representative of the employer to ascertain its position.

[4] The representative of CS Energy, a Mr Alex Aspromourgos, advised chambers that CS Energy did not oppose the application or wish to make any application in respect of the order sought by APESMA. Accordingly, the matter was dealt with on the papers.

Relevant statutory provision

[5] In considering this matter I must apply s.443 of the Act which provides as follows:

443 When FWA must make a protected action ballot order

(1) FWA 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) FWA 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) FWA 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;

(c) the date by which voting in the protected action ballot closes;

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

(4) If FWA 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 FWA decides, under subsection 444(1), is to be the protected action ballot agent; and

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

(5) If FWA 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.

Application made in accordance with s.437

[6] I am satisfied for the purposes of s.443(1)(a) that the application has been made in accordance with s.437 of the Act.

Genuinely trying to reach agreement

[7] The only other prerequisite for the making of the order is that I must be satisfied that the applicant has been, and presently is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[8] In order to demonstrate that APESMA has been, and is, genuinely trying to reach an agreement with CS Energy, an affidavit was filed on behalf of APESMA by Mr Michael Butler, APESMA Director of Industrial Relations. The affidavit of Mr Butler attested to:

• The negotiations which have taken place between APESMA, its workplace delegates and representatives of CS Energy since the commencement of bargaining on 23 February 2011;



• Government policies regarding wages of employees of government owned corporations restricting CS Energy’s bargaining parameters; and



• The major issues which remain outstanding.

[9] On the basis of Mr Butler’s unchallenged affidavit, and given that the application is not opposed by CS Energy, I am satisfied that APESMA has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[10] As noted, the Order is not opposed by CS Energy and in the circumstances I have decided to determine the matter on the papers as I am satisfied it is not necessary to hold a hearing.

[11] As s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the Union. My order will issue separately.

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