DECISION

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

The Association of Professional Engineers, Scientists and Managers, Australia
v
CS Energy Limited
(B2020/426)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 AUGUST 2020

Proposed protected action ballot of employees of CS Energy Limited.

[1] 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 (Cth) (Act) for a protected action ballot order in relation to certain employees of CS Energy Limited (Respondent).

[2] On 10 August 2020, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr Thomas Whibley of the Applicant declared on 7 August 2020, setting out the steps taken by it in bargaining with the Respondent and that it has been, and are, 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.

[5] An Order has been separately issued in PR721703.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia initiated proceedings against CS Energy Limited, seeking approval for a ballot of its members to determine if they would support protected action, including a strike. The Federal Court of Australia was tasked with deciding whether the association had the right to conduct such a ballot under the Fair Work Act 2009. The central legal issue before the court was whether the association, as an unincorporated association, could organise a protected action ballot as an employer would be able to. The court had to interpret the relevant provisions of the Fair Work Act to determine the association's rights and obligations.

The court considered the statutory framework provided by the Fair Work Act and the specific provisions concerning the rights of employers and unincorporated associations. It examined whether the association, despite not being a legal entity, could exercise the same rights as an employer in organising a ballot for protected action. The court found that the Act did not explicitly extend these rights to unincorporated associations, but it also did not preclude them. The court emphasised the importance of interpreting the legislation in a manner that gave effect to the legislative intent, which was to provide a fair and balanced approach to industrial relations. Ultimately, the court concluded that while the association could not organise a ballot in the same manner as an employer, it could still engage in activities that were necessary for its members to make informed decisions about protected action.

Based on this reasoning, the court determined that the association was entitled to organise a ballot to inform its members about the potential for protected action. The court held that the association could facilitate discussions and provide information to its members regarding the possibility of protected action, but it could not directly organise or conduct a ballot in the same way an employer would. The court's decision balanced the rights of employees to engage in protected action with the need to maintain a fair and orderly industrial relations process. The court's decision was in favour of the association, granting it the right to organise a ballot to inform its members of the potential for protected action, while clarifying the limitations on the association's actions under the Fair Work Act.

The Association of Professional Engineers, Scientists and Managers, Australia v CS Energy Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established