Association of Professional Engineers, Scientists and Managers, Australia v South Australian Water Corporation Summary

[2024] FWC 1997

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Association of Professional Engineers, Scientists and Managers, Australia
v

South Australian Water Corporation

(B2024/952)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 29 JULY 2024

Proposed protected action ballot of employees of the South Australian Water Corporation

This is an application by the Association of Professional Engineers, Scientists and Managers, Australia (APESMA or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the South Australian Water Corporation trading as SA Water (SA Water or Employer).

On 26 July 2024, the Commission was advised that the Employer, in effect, did not object to the Application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Eduardo Antonio Gonzalez Ponce, Union Official, setting out the steps taken by the APESMA in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with SA Water, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 8 August 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR777615.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 7 days from the anticipated commencement of the ballot and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) made an application to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of the South Australian Water Corporation trading as SA Water (SA Water). The application was made to facilitate a ballot for potential protected action by the employees in a bid to reach a new enterprise agreement with SA Water. The South Australian Water Corporation did not object to the application, allowing the Commission to determine the matter based on the provided documentation.

The legal issues before the Commission included whether the APESMA had genuinely attempted to negotiate a new enterprise agreement with SA Water and whether all statutory requirements for conducting the ballot had been satisfied. The Commission examined the declaration of Eduardo Antonio Gonzalez Ponce, a Union Official, which outlined the bargaining efforts and the ongoing genuine attempts to reach an agreement with SA Water. Furthermore, the Commission had to determine an appropriate closing date for the voting period, as required by section 443(3)(c) of the Act.

Upon reviewing the evidence and finding that all statutory conditions were met, the Deputy President Hampton granted the application for a protected action ballot order. The ballot was to be conducted by Democratic Outcomes Pty Ltd (CiVS), who was authorised under section 468A of the Act as an eligible ballot agent. The Commission set the closing date for voting as 8 August 2024, effectively allowing a seven-day ballot period. The matter was assigned to another Commission member for the compulsory conciliation conference, which would involve all bargaining representatives in proposed enterprise agreement negotiations.

Association of Professional Engineers, Scientists and Managers, Australia v South Australian Water Corporation

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established