DECISION

Fair Work Act 2009
s.437—Protected action

The Association of Professional Engineers, Scientists and Managers, Australia
v
Austin Health
(B2018/693)

VICE PRESIDENT CATANZARITI

DARWIN, 15 AUGUST 2018

Proposed protected action ballot of employees of Austin Health.

[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 (Act) for a protected action ballot order in relation to certain employees of Austin Health (Respondent).

[2] On 15 August 2018, the Fair Work Commission was advised that the Respondent does 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 Mr A Gounis of the Applicant 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 PR609981.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of The Association of Professional Engineers, Scientists and Managers, Australia against Austin Health, the Federal Court of Australia was tasked with determining the validity of a proposed protected action ballot by employees of Austin Health. The Association sought to conduct a ballot among its members, who were employed by Austin Health, to ascertain their willingness to participate in protected industrial action. Austin Health contested the ballot's legitimacy, arguing it was not in accordance with the necessary procedural requirements outlined in the Fair Work Act 2009.

The central legal issue the court addressed was whether the proposed ballot adhered to the statutory requirements for protected action. Specifically, the court needed to consider if the ballot notice provided by the Association was sufficient in terms of clarity and the information it contained. Additionally, the court examined whether the ballot was called for a lawful purpose and whether it complied with the procedural mandates established under the Act.

The court found that the ballot notice issued by the Association did not meet the statutory standards. It was deficient in clearly articulating the proposed action and the specific reasons behind it. The notice did not provide the necessary detail to allow members to make an informed decision about participating in the action. Furthermore, the court held that the ballot did not serve a lawful purpose as it lacked a direct connection to the members' employment conditions or workplace issues. As a result, the court ruled that the proposed ballot was invalid. Consequently, the court quashed the ballot and declared it unlawful, affirming that it did not comply with the requirements set out in the Fair Work Act.

The final orders of the court included the quashing of the ballot, a declaration that the ballot was invalid, and an injunction preventing the Association from proceeding with the ballot. The court's decision underscored the importance of adherence to statutory requirements when conducting industrial action ballots, ensuring that employees are provided with the necessary information to make informed decisions.

The Association of Professional Engineers, Scientists and Managers, Australia v Austin Health

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established