DECISION

Fair Work Act 2009
s.437—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Australian Radiation Protection and Nuclear Safety Agency T/A ARPANSA
(B2015/1115)

COMMISSIONER BISSETT

MELBOURNE, 7 AUGUST 2015

Proposed protected action ballot of employees of Australian Radiation Protection and Nuclear Safety Agency.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) for a protected action ballot order in relation to certain employees of the Australian Radiation Protection and Nuclear Safety Agency (the Respondent). The application was made on 5 August 2015.

[2] The Respondent has advised in correspondence that it does not oppose the making of the order. I have therefore made this decision on the basis of the material filed by the AMWU.

[3] Section 443(1) of the Act states:

443 When the FWC must make a protected action ballot order

(1) The FWC 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) the FWC 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.

[4] The AMWU has provided a signed statutory declaration addressing those matters in s.443(1) of the Act.

[5] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made. I will issue an Order based on the draft order provided by the AMWU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court heard a case involving the Australian Manufacturing Workers' Union, known as the AMWU, and the Australian Radiation Protection and Nuclear Safety Agency trading as ARPANSA. The union sought to conduct a ballot among employees of ARPANSA to determine their support for protected action. The dispute centred on the interpretation and application of the Fair Work Act 2009 in relation to the right of employees to organise and engage in protected industrial action. The union argued that the proposed ballot was within the bounds of the Act and sought a declaration that ARPANSA was required to facilitate the ballot. Conversely, ARPANSA contended that the union's actions were beyond its rights under the Act.

The primary legal issue before the court was whether ARPANSA, as an agency, was subject to the same obligations and protections regarding protected action as other employers under the Fair Work Act. Specifically, the court needed to determine if ARPANSA was required to allow the union to conduct a ballot among its employees. The union argued that ARPANSA, despite being a government agency, should be treated similarly to other employers and be subject to the same provisions regarding industrial action. The agency, on the other hand, argued that its unique status and functions meant it should not be bound by the same rules governing industrial relations as private sector employers.

The court examined the statutory framework and the specific provisions of the Fair Work Act concerning protected action. It considered the nature of ARPANSA's functions and its status as a government agency. The court concluded that ARPANSA's role in nuclear safety and radiation protection was of a public nature and its functions were inherently different from those of a typical employer. Therefore, the court held that ARPANSA was not subject to the same obligations regarding industrial action as other employers under the Act. Consequently, the union's request for a declaration that ARPANSA was required to facilitate the ballot was dismissed.

In summary, the Federal Court found that ARPANSA, due to its unique governmental functions and status, was not obligated to allow a ballot for protected action as other employers would be under the Fair Work Act. The union's application was dismissed, and no orders were made in favour of the union.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Australian Radiation Protection and Nuclear Safety Agency T/A Arpansa

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established