Association of Professional Engineers, Scientists and Managers, Australia v Sydney Water Corporation T/A Sydney Water Summary

[2023] FWC 2837

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Association of Professional Engineers, Scientists and Managers, Australia
v

Sydney Water Corporation T/A Sydney Water

(B2023/1164)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 27 OCTOBER 2023

Application to extend the 30 day period in relation to B2023/978

This matter concerns the declaration of the result of a protected action ballot (PR66214) held in matter B2023/978 and declared on 29 September 2023.

The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) has made an application pursuant to s.459(3) of the Fair Work Act 2009 (Act) to extend the 30 day period in which industrial action is authorised by the relevant protected action ballot.

Section 459(3) of the Act provides as follows:

“(3) The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b) the period has not previously been extended.”

The application made by the APESMA contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

Sydney Water Corporation T/A Sydney Water was advised to raise any objections by 10:00am on Thursday 26 October 2023 and did not do so.

I am satisfied that the relevant requirements of the Act have been met and that the application should be granted.

Accordingly, pursuant to section 459(3) of the Act, I order that the 30 day period for the commencement of protected industrial action for eligible APESMA members employed by Sydney Water be extended by a further 30 days.

This order will operate on and from 27 October 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) considered an application from the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) to extend the 30-day period for protected industrial action authorised by a ballot held for its members employed by Sydney Water Corporation T/A Sydney Water. The application was pursuant to section 459(3) of the Fair Work Act 2009, which allows the FWC to extend the 30-day period if the applicant applies for the extension and the period has not been previously extended. The ballot result was declared on 29 September 2023, and Sydney Water was given the opportunity to object by 10:00 am on Thursday 26 October 2023, but it did not do so.

The legal issue before the FWC was whether the requirements under section 459(3) of the Act had been satisfied for the extension of the 30-day period. APESMA argued that it had met the criteria and that the period should be extended by a further 30 days. Sydney Water had the opportunity to object but chose not to, which left the matter for the FWC to decide. The FWC found that APESMA had met all the necessary requirements for the extension, and therefore, the application should be granted.

In making its decision, the FWC took into account the statutory requirements and the absence of objections from Sydney Water. The Deputy President concluded that the application met the criteria under section 459(3) of the Act. Consequently, the FWC ordered that the 30-day period for the commencement of protected industrial action for eligible APESMA members employed by Sydney Water be extended by a further 30 days, effective from 27 October 2023.

Association of Professional Engineers, Scientists and Managers, Australia v Sydney Water Corporation T/A Sydney Water

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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