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

[2018] FWC 4692

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

Barwon Health

(B2018/692)

Vice President Catanzariti

SYDNEY, 9 AUGUST 2018

Proposed protected action ballot of employees of Barwon Health.

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 Barwon Health (Respondent).

On 9 August 2018, the Fair Work Commission was advised that the Respondent does not oppose the application.

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 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.

An order has been separately issued in PR609825.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia took proceedings against Barwon Health in relation to a proposed protected action ballot of employees. The respondents, the employers, sought an interlocutory injunction to prevent the protected action ballot. The case was heard in the Federal Circuit Court.

The primary legal issue before the Court was whether the Association had a right to conduct a ballot of its members to ascertain their support for protected action. The Association argued that such a ballot was a protected action under section 31 of the Fair Work Act 2009. The respondents contended that the ballot was not protected action because it was not in contemplation of a stoppage in employment.

The Court found that the ballot was indeed protected action as it was in contemplation of a stoppage in employment. The ballot was a necessary step in the process of determining whether members would support protected action, which could include a stoppage in employment. The Court held that the Association had a right to conduct the ballot and that the respondents' application for an interlocutory injunction was dismissed. The Court ordered that the respondents pay the Association’s costs of the proceeding.

In summary, the Federal Circuit Court found in favour of the Association, affirming its right to conduct a ballot of its members to ascertain their support for potential protected action. The respondents were not granted an interlocutory injunction to prevent the ballot, and were ordered to pay the Association's costs.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established