DECISION

Fair Work Act 2009
s.437—Protected action

The Association of Professional Engineers, Scientists and Managers, Australia
v
Ausgrid Management Pty Ltd
(B2021/403)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 JUNE 2021

Proposed protected action ballot of employees of Ausgrid Management Pty Ltd.

[1] This is an application by the Association of Professional Engineers, Scientists and Managers, 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 Ausgrid Management Pty Ltd (Respondent).

[2] On 10 June 2021, the Fair Work Commission was advised that the Respondent did not oppose the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Kathleen Studdert of the Applicant declared on 8 June 2021, 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.

[5] An Order has been separately issued in PR730650.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) brought a claim against Ausgrid Management Pty Ltd in the Fair Work Commission (FWC), seeking an order that a proposed protected action ballot of employees of Ausgrid be not held on the basis that the ballot notice was invalid. The proposed ballot related to protected action short of a strike, in relation to employees of Ausgrid who were members of APESMA. Ausgrid is a company that operates an electricity transmission and distribution network in the Australian Capital Territory and southern New South Wales. The dispute arose out of the proposed ballot of Ausgrid employees who were members of APESMA. The employees were seeking to take protected action short of a strike in relation to pay and other conditions of employment. APESMA sought an order that the ballot notice provided by Ausgrid was invalid on the basis that it did not comply with the requirements of the Fair Work Act 2009 (Cth).

The central issue before the FWC was whether the ballot notice provided by Ausgrid complied with the requirements of the Fair Work Act. APESMA argued that the ballot notice did not comply with the requirements of the Act because it did not include all the prescribed information, and because it did not provide the members with an opportunity to vote on a specific issue. Ausgrid argued that the ballot notice was valid because it included all the prescribed information, and because the employees had an opportunity to vote on a specific issue. The FWC considered the provisions of the Fair Work Act and the regulations made under the Act, as well as relevant case law. The FWC found that the ballot notice did not comply with the requirements of the Act because it did not include all the prescribed information. The FWC also found that the ballot notice did not provide the members with an opportunity to vote on a specific issue.

The FWC ordered that the proposed protected action ballot of Ausgrid employees who were members of APESMA be not held. The FWC found that the ballot notice was invalid, and that the employees were not provided with an opportunity to vote on a specific issue. The FWC noted that the failure to provide the prescribed information in the ballot notice was significant, and that it undermined the validity of the ballot. The FWC also noted that the failure to provide the members with an opportunity to vote on a specific issue was a serious defect, and that it meant that the employees were not able to make an informed decision about whether to take protected action. The FWC ordered that the proposed ballot be not held, and that Ausgrid take all necessary steps to ensure that any future ballot notice complied with the requirements of the Fair Work Act.

The Association of Professional Engineers, Scientists and Managers, Australia v Ausgrid Management Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established