The Association of Professional Engineers, Scientists and Managers, Australia v Australian Nuclear Science and Technology Organisation

[2024] FWC 948

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

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

Australian Nuclear Science and Technology Organisation

(B2024/433)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 12 APRIL 2024

Proposed protected action ballot of employees of the Australian Nuclear Science and Technology Organisation

This is an application by The Association of Professional Engineers, Scientists and Managers, Australia (APESMA or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the Australian Nuclear Science and Technology Organisation (ANSTO or Employer).

On 11 April 2024, the Commission was advised that ANSTO did not, in effect, object to the Application as amended.[1]

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

On the basis of the material before me, including the declaration of Thomas Green, Union Organiser, setting out the steps taken by APESMA in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with ANSTO, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act[2] and consequently is authorised to conduct the ballot.
For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 26 April 2024.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR773427.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives for the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] Parties reached a consent position on amendments made to the application which included changes to ballot questions and some editorial corrections.

[2] [2023] FWC 1400.

[3] The Applicant lodged their application on 10 April 2023 and sought the ballot to close on the 23 April. This was in effect, ten (10) working days from the date of the application. The prescribed date for the ballot to close has been calculated by reference to the date the order has ultimately been made and is in effect nine (9) clear working days from the making of the Order.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) filed an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of the Australian Nuclear Science and Technology Organisation (ANSTO). The application was heard by the Fair Work Commission, with Deputy President Hampton presiding. ANSTO did not object to the application, resulting in the decision being made on the papers without a hearing. The primary objective of the application was to conduct a ballot among ANSTO employees to determine their support for protected industrial action.

The legal issues central to the decision were whether APESMA had genuinely attempted to reach an agreement with ANSTO and whether all procedural requirements under the Fair Work Act had been fulfilled. The court examined the declaration of Thomas Green, the Union Organiser for APESMA, which outlined the bargaining process and APESMA's efforts to negotiate with ANSTO. The Commission determined that APESMA had genuinely attempted to reach an agreement and that all conditions under section 443(1) of the Act were met. Additionally, the Commission approved Democratic Outcomes Pty Ltd as the ballot agent and set the closing date for the voting period as 26 April 2024.

The Deputy President concluded that the notification period for the proposed agreement had been met and granted the application for a ballot order. The Commission established the voting period for the ballot and noted that a separate order had been issued in PR773427. This matter will be assigned to another member for a compulsory conciliation conference under section 448A of the Act, requiring the attendance of all bargaining representatives for the proposed enterprise agreement. Directions will likely be issued to ensure the parties engage in meaningful negotiations at the conference.

This decision underscores the importance of genuine bargaining efforts and procedural compliance in applications for protected action ballot orders. The Commission's determination ensures that the employees of ANSTO have an opportunity to express their views on the proposed enterprise agreement, facilitating a transparent and fair process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established