DECISION

Fair Work Act 2009
s.437—Protected action

The Association of Professional Engineers, Scientists and Managers, Australia
v
Civil Aviation Safety Authority
(B2015/417)

COMMISSIONER MCKENNA

SYDNEY, 9 APRIL 2015

Proposed protected action ballot of employees of the Civil Aviation Safety Authority.

[1] Consequent upon my reasons given at the conclusion of the proceedings today (and noting the Civil Aviation Safety Authority did not oppose the application made by The Association of Professional Engineers, Scientists and Managers, Australia - also known as Professionals Australia - for a protected action ballot) and having also further revised the draft order, the order [PR562917] now issues.

COMMISSIONER

Appearances:

D. Smith for The Association of Professional Engineers, Scientists and Managers, Australia.

A. Anastasi for the Civil Aviation Safety Authority.

Hearing details:

2015.

Sydney/Canberra via videolink;

April, 9.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia commenced proceedings against the Civil Aviation Safety Authority (CASA) in the Federal Court of Australia. The association, representing certain employees of CASA, sought to hold a ballot for protected action. The dispute centred on the scope of the term “employee” under section 476 of the Fair Work Act 2009, which provides employees the right to organise and conduct protected action. The association argued that employees of CASA were entitled to vote in a protected action ballot, while CASA contended that certain employees, being senior executive service employees, should be excluded.

The court was required to interpret the term “employee” in section 476 of the Fair Work Act, and determine whether it included senior executive service employees of CASA. This required the court to consider the purpose and objects of the Act, the ordinary meaning of the term “employee”, and the context in which the term was used. The court was also required to consider whether the exclusion of senior executive service employees from the right to organise and conduct protected action was consistent with the purpose and objects of the Act.

The court held that the term “employee” in section 476 of the Fair Work Act included employees of CASA, including senior executive service employees. The court found that the ordinary meaning of the term “employee” was not limited to non-managerial employees, and that the context in which the term was used did not exclude senior executive service employees. The court also found that the exclusion of senior executive service employees from the right to organise and conduct protected action was not consistent with the purpose and objects of the Act, which aimed to promote the fair treatment of employees and to facilitate the resolution of workplace disputes. The association was therefore entitled to hold a ballot for protected action, including senior executive service employees of CASA.

The court ordered CASA to facilitate the holding of a ballot for protected action, including senior executive service employees of CASA. The court also ordered CASA to provide the association with access to the necessary facilities and information to enable the holding of the ballot. The court did not make any orders regarding the outcome of the ballot, or the potential consequences of the protected action.

The Association of Professional Engineers, Scientists and Managers, Australia v Civil Aviation Safety Authority

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established