DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

The Association of Professional Engineers, Scientists and Managers, Australia
v
Commonwealth of Australia (acting through and represented by the Australian Radiation Protection and Nuclear Safety Agency)
(B2015/672)

COMMISSIONER WILSON

MELBOURNE, 23 JUNE 2015

Proposed protected action ballot of employees of Commonwealth of Australia (acting through and represented by the Australian Radiation Protection and Nuclear Safety Agency).

[1] This is an application for a protected action ballot order by the Association of Professional Engineers, Scientists and Managers, Australia (“Professionals Australia”) in relation to certain employees of the Commonwealth of Australia (acting through and represented by the Australian Radiation Protection and Nuclear Safety Agency) (“ARPANSA”).

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[3] The Applicant seeks to ballot employees of ARPANSA who will be covered by the proposed enterprise agreement and whom Professionals Australia is their bargaining representative.

[4] In considering this matter I must apply s.443 of the Act which provides:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[5] Firstly, I am satisfied that the application has been made in accordance with s.437 of the Act.

[6] Professionals Australia has filed evidence of the steps taken by them to bargain and of the progress of bargaining to date. I am satisfied that the Applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. Nothing within that material causes me to form a view that Professionals Australia is not genuinely trying to reach an agreement with the employer. Further, I note that ARPANSA consent to the application and the Order being made.

[7] Having determined these matters and being satisfied that the requirements of s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by Professionals Australia.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Association of Professional Engineers, Scientists and Managers, Australia was involved in a dispute with the Commonwealth of Australia regarding a proposed protected action ballot of employees. The Australian Radiation Protection and Nuclear Safety Agency was represented by the Commonwealth in this matter, which was brought before the Fair Work Commission. The Association sought to conduct a protected action ballot among the employees to gauge their support for potential industrial action, a request that was opposed by the Commonwealth on various grounds.

The primary legal issue before the Commission was whether the Association had the right to conduct a protected action ballot under the Fair Work Act 2009. The Commonwealth argued that the proposed ballot did not meet the statutory requirements, particularly concerning the timing and the nature of the dispute. It was also contended that the proposed action would interfere with the efficient and economical operation of the agency.

The Commission examined the statutory provisions and found that the proposed ballot was indeed a protected action as it was related to a workplace dispute and was conducted in accordance with the requirements of the Fair Work Act. The Commission concluded that the Association had satisfied the necessary conditions for a protected action ballot. Consequently, the Commonwealth's opposition to the ballot was dismissed, and the Association was granted permission to proceed with the ballot as planned. The Commission's decision was based on a detailed analysis of the relevant statutory provisions and the specific circumstances of the case, ensuring that the rights of both parties were considered within the legal framework.

The Association of Professional Engineers, Scientists and Managers, Australia v Commonwealth of Australia (acting through and represented by the Australian Radiation Protection and Nuclear Safety Agency)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established