Association of Professional Engineers, Scientists and Managers, Australia v Ulan West Operations Pty Ltd Summary

[2023] FWC 3046

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

Ulan West Operations Pty Ltd

(B2023/1274)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 21 NOVEMBER 2023

Proposed protected action ballot of employees of Ulan West Operations Pty Ltd

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 Ulan West Operations Pty Ltd (Ulan or Employer).

On 20 November 2023, the Commission was advised that Ulan did not, in effect, 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 Mr Tom Edwards, Senior Organiser, 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 Ulan, 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 the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[1] 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 5 December 2023.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR768459.

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 involved 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] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.

[2] This is, in effect, ten (10) working days from the date of effect of the Order, as 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) has applied to the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Ulan West Operations Pty Ltd (Ulan). The application was made to facilitate a ballot for protected action, which is a form of industrial action authorised by the Act under specific circumstances. Ulan did not object to the application, leading the Deputy President Hampton to determine the matter on the papers without a hearing. The Commission's decision focuses on whether the conditions for a ballot, as stipulated in section 443(1) of the Act, have been met, and whether the ballot agent, Democratic Outcomes Pty Ltd T/A CiVS (CiVS), is authorised to conduct the ballot.

The central legal issues before the Commission were whether APESMA had met all the requirements for a ballot under the Act, including the notification time for the proposed agreement, and whether CiVS was an approved agent authorised to conduct the ballot. The Deputy President Hampton found that APESMA had genuinely attempted to reach an agreement with Ulan and had satisfied all the statutory requirements for a ballot. CiVS was also deemed to be an authorised agent under section 468A of the Act, having been approved for this role in a previous decision. The determination of the closing date for voting, set at 5 December 2023, was also addressed, ensuring compliance with the Act's provisions regarding the ballot period.

The Deputy President Hampton granted the application for a protected action ballot order, setting the closing date for voting as 5 December 2023. The Commission determined that CiVS was authorised to conduct the ballot. Additionally, the matter was assigned to another Member of the Commission to conduct the compulsory conciliation conference under section 448A of the Act. An Order was issued in PR768459, and further directions are expected to ensure that the parties attend the conference prepared for meaningful negotiations. This decision ensures that the processes for a protected action ballot are properly followed and that the rights of both the employees and the employer are considered in the negotiation process.

Association of Professional Engineers, Scientists and Managers, Australia v Ulan West Operations Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established