The Association of Professional Engineers, Scientists and Managers Australia v ACT Government as represented by the Health Directorate

[2013] FWC 6440

[2013] FWC 6440

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Association of Professional Engineers, Scientists and Managers Australia
v
ACT Government as represented by the Health Directorate
(B2013/1191)

COMMISSIONER DEEGAN CANBERRA, 3 SEPTEMBER 2013

Proposed protected action ballot by employees of the ACT Government Health Directorate employed in medical physics classifications.

[1] This decision relates to an application made by The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) on 30 August 2013, for a protected action ballot of employees of the ACT Government Health Directorate (the Employer). The application was made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The representative of the Employer, Mr Steven Linton, advised the Commission that the Employer has concerns as to the wording of one of the questions to be put to the voters (Question 6) in the draft order. He also stated that it had been suggested to APESMA that the question be removed. In response, APESMA agreed to the suggested amendment to the draft order. The Employer did not oppose the order sought on any other grounds. In these circumstances a hearing is unnecessary.

[3] The group of employees to be balloted are the employees who will be covered by the proposed enterprise agreement and employed by the ACT Government Health Directorate in medical physics classifications in Annex A of the ACT Public Service Health Directorate (Health Professionals) Enterprise Agreement 2011-2013 and for whom The Association of Professional Engineers, Scientists and Managers, Australia is the bargaining representative.

[4] The relevant section of the Act, s.443, provides as follows:

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.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

[5] I am satisfied that the application has been made in accordance with s.437 of the Act and that APESMA is genuinely trying to reach an agreement with the Employer of the employees who are to be balloted.

[6] As ss.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by APESMA. An Order [PR541118] to this effect is issued separately.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR541116>