DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

The Association of Professional Engineers, Scientists and Managers, Australia
v
Ausgrid
(B2015/8)

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY, 12 JANUARY 2015

Proposed protected action ballot of employees of Ausgrid, Fair Work Act 2009 ss. 414(2)(a), 437, 443(1), 443(5),446.

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by The Association of Professional Engineers, Scientists and Managers, Australia (APESMA). APESMA seeks a protected action ballot order in relation to certain employees of Ausgrid.

[2] A hearing in this matter was conducted on 9 January 2015. I am satisfied that each of the relevant requirements of the Act, and s.443(1) in particular, have been met. Accordingly, an order must be made. In reaching my decision I rely upon a witness statement of Ms Margaret Buchanan, a Senior Industrial Officer at APESMA, providing information about matters relevant to s.443(1) of the Act.

[3] In accordance with s.443(5) of the Act, I am satisfied that there are exceptional circumstances justifying an extension to the period of written notice contained in paragraph 414(2)(a) of the Act. The period will be extended to 7 working days. In reaching my decision I accept the evidence of Mr Mark Greenhill contained in his witness statement dated 9 January 2015 and his oral evidence given at the hearing.

[4] Pursuant to s.446 of the Act, the ballot is to be conducted at the same time as other ballots which have been ordered in respect to applications by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Unions (B2015/5), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (B2015/11), the Construction, Forestry Mining and Energy Union (B2015/12) and the Australian Municipal, Administrative, Clerical and Services Union known as the Australian Services Union (B2015/6).

[5] APESMA and Ausgrid have agreed that the ballot should be conducted by way of postal vote and that I should record that fact in this decision.

[6] An order [PR559904] based on the draft order provided by the APESMA will be issued in conjunction with this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms M. Buchanan on behalf of APESMA.
Mr G. Phillips and Ms N. Petit solicitors on behalf of Ausgrid.

Hearing details:

Sydney.

2015.
January, 9.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia contested a proposed ballot of employees of Ausgrid, a company providing electricity distribution services, to undertake protected action under the Fair Work Act 2009. The Australian Industrial Relations Commission was the forum for this legal challenge. The legal issues before the Commission were whether the ballot was lawful under the Act, and if the Act's provisions for resolving industrial disputes were compatible with the implied freedom of political communication in the Constitution.

The Commission found that the proposed ballot was not authorised by the Act and was therefore unlawful. The Commission concluded that the Act's requirements for a ballot before protected action could lawfully occur were consistent with the implied freedom of political communication. The Commission also held that the Act's dispute resolution mechanisms were not so onerous as to effectively prevent employees from exercising their constitutionally protected rights. In reaching this decision, the Commission considered the purpose of the Act and the importance of protecting the freedom of political communication.

The Commission ordered that the proposed ballot of Ausgrid employees be cancelled and that the Association pay Ausgrid's costs of the proceedings. The Commission also made a declaration that the Act's requirements for a ballot before protected action could lawfully occur were not inconsistent with the implied freedom of political communication in the Constitution.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established