The Association of Professional Engineers, Scientists and Managers, Australia v Commonwealth of Australia (acting through and represented by the Bureau of Meteorology)

[2015] FWC 2776

[2015] FWC 2776

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
Commonwealth of Australia (acting through and represented by the Bureau of Meteorology)
(B2015/462)

COMMISSIONER WILSON MELBOURNE, 22 APRIL 2015

Proposed protected action ballot of employees of Commonwealth of Australia (acting through and represented by the Bureau of Meteorology).

[1] This is an application for a protected action ballot order by members of the Association of Professional Engineers, Scientists and Managers, Australia (Professionals Australia) employed by the Commonwealth of Australia (acting through and represented by the Bureau of Meteorology).

[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 the Commonwealth of Australia (acting through and represented by the Bureau of Meteorology) who will be covered by the proposed enterprise agreement and are represented by the bargaining representative who is the Applicant for this protected action ballot order.

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

[6] The next matter to which attention must be given is whether or not the Applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In this matter, Professionals Australia have filed evidence of the steps taken by them to bargain and the progress of bargaining to date. 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 the Bureau of Meteorology has not indicated opposition to the order being made.

[7] The parties submitted, and I accept, that there are exceptional circumstances that would allow a longer period of written notice for the taking of proposed industrial action for certain questions, and the order reflects the parties’ agreement.

[8] Having decided all of these matters and that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by Professionals Australia.

COMMISSIONER

Appearances:

Mr T Fooks and Ms S Herrington for Professionals Australia

Mr C Stocks, Mr R Deslandes and Ms M Owen for the Bureau of Meteorology

Hearing details:

2015.

Melbourne:

22 April

Printed by authority of the Commonwealth Government Printer

<Price code A, PR563351>