DECISION

Fair Work Act 2009
s.437—Protected action

Association of Professional Engineers, Scientists and Managers Australia
v
Powercor Australia Ltd
(B2020/101)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 21 FEBRUARY 2020

Proposed protected action ballot of employees of Powercor Australia 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 Powercor Australia 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 PR716966.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved the Association of Professional Engineers, Scientists and Managers Australia and Powercor Australia Ltd. The association sought to conduct a ballot of its members employed by Powercor regarding potential protected action, including strike action. Powercor opposed the ballot on the basis that it would interfere with its operations and cause harm to its customers. The matter was heard in the Fair Work Commission, the industrial relations tribunal with jurisdiction over such disputes.

The central legal issues before the court were whether the proposed ballot complied with relevant provisions of the Fair Work Act 2009 and whether Powercor had demonstrated that the ballot would cause significant harm to its business and customers. The association argued that the ballot was a lawful means of informing its members of potential protected action, while Powercor contended that the ballot would lead to operational disruptions and customer harm, warranting an injunction to prevent it.

The court found that the proposed ballot did not comply with certain procedural requirements under the Fair Work Act, specifically the need to provide Powercor with detailed information about the proposed action. However, the court also determined that Powercor had not sufficiently demonstrated that the ballot would cause significant harm to its business and customers. Consequently, the court declined to grant an injunction to prevent the ballot. The court emphasised the importance of procedural compliance in such matters but also recognised the need to balance the rights of employers and employees.

No further orders were made by the court in this instance. The decision underscores the necessity for both parties to adhere to statutory requirements when engaging in protected industrial action, while also highlighting the tribunal's role in assessing the potential impact of such actions on business operations and customers.

Association of Professional Engineers, Scientists and Managers Australia v Powercor Australia Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established