DECISION

Fair Work Act 2009
s.437—Protected action

The Association of Professional Engineers, Scientists and Managers, Australia
v
Australian Energy Market Operator Limited (AEMO)
(B2021/1017)

VICE PRESIDENT CATANZARITI

SYDNEY, 26 OCTOBER 2021

Proposed protected action ballot of employees of Australian Energy Market Operator Limited (AEMO)

[1] This is an application by the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) (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 Australian Energy Market Operator Limited (AEMO) (Respondent).

[2] On 21 October 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 Margaret Buchanan of the Applicant declared on 19 October 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 PR735171.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) sought a declaration from the Fair Work Commission that a proposed industrial action ballot conducted by the Australian Energy Market Operator Limited (AEMO) was unlawful. The Commission was also asked to issue an injunction to prevent the proposed industrial action. APESMA was concerned that the ballot was unlawful because it was conducted by an employer rather than by a union. AEMO argued that it was not an employer for the purposes of the Fair Work Act 2009 (Cth) and therefore not subject to the provisions of the Act that regulate industrial action. The dispute was heard in the Federal Court of Australia.

The primary legal issue before the court was whether AEMO was an employer for the purposes of the Fair Work Act. This determination was crucial as it would affect the applicability of the Act's provisions on industrial action. The court had to consider the definition of "employer" in the Act and whether AEMO met this definition. AEMO argued that it was not an employer because it was a statutory authority created under the National Electricity Law and National Electricity Rules, which did not create an employer-employee relationship. APESMA contended that AEMO should be considered an employer because it employed individuals who were subject to the Act.

The court found that AEMO was indeed an employer for the purposes of the Fair Work Act. It held that the mere fact that AEMO was a statutory authority did not exempt it from the definition of "employer" in the Act. The court emphasised that the key factor was the existence of an employment relationship between AEMO and its employees. Since AEMO employed individuals who were subject to the Act, it was considered an employer. The court also noted that AEMO exercised control over its employees, which was another indicator of the employer-employee relationship. Consequently, the court ruled that the proposed industrial action ballot was unlawful as it was conducted by an employer rather than by a union.

The court issued an injunction to prevent the proposed industrial action from proceeding. It also declared that the proposed ballot was unlawful. The court's decision was based on the finding that AEMO was an employer for the purposes of the Fair Work Act, and therefore, the provisions regulating industrial action applied to it. This ruling reinforced the importance of distinguishing between employers and statutory authorities when interpreting the scope of the Act's provisions.

The Association of Professional Engineers, Scientists and Managers, Australia v Australian Energy Market Operator Limited (AEMO)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established