The Association of Professional Engineers, Scientists and Managers Australia T/A Professionals Australia v Power and Water Corporation

[2022] FWC 2565

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Association of Professional Engineers, Scientists and Managers Australia T/A Professionals Australia
v

Power and Water Corporation

(B2022/1398)

VICE PRESIDENT CATANZARITI

SYDNEY, 23 SEPTEMBER 2022

Proposed protected action ballot of employees of Power and Water Corporation

This is an application by the Association of Professional Engineers, Scientists and Managers Australia T/A Professionals Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Power and Water Corporation (Respondent).

On 21 September 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Paul Inglis of the Applicant declared on 15 September 2022, 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.

An Order has been separately issued in PR746163.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers Australia, trading as Professionals Australia (Applicant), applied to the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009 for an order allowing a ballot of employees of Power and Water Corporation (Respondent) regarding proposed protected action. The application was made as the Applicant claimed to have been genuinely attempting to reach an agreement with the Respondent but was unable to do so. The Respondent did not oppose the application.

The primary legal issue before the FWC was whether the Applicant had satisfied the requirements under section 443(1) of the Fair Work Act to hold a ballot for protected action. This involved determining whether the notification period for the proposed agreement had been met, and if the Applicant had genuinely been trying to reach an agreement with the Respondent.

The FWC found that the Applicant had met the requirements for a protected action ballot, based on the evidence provided, including the statutory declaration of Paul Inglis, which detailed the steps taken in bargaining with the Respondent and the Applicant's genuine efforts to reach an agreement. The FWC was satisfied with the evidence that the notification time for the proposed agreement had been met and that the statutory criteria for holding a ballot had been fulfilled. Consequently, the FWC issued an order permitting the ballot for protected action.

No additional paragraph is required as the final orders are noted in the decision and pertain to the issuance of the ballot order.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established