DECISION

Fair Work Act 2009
s.437—Protected action

The Association of Professional Engineers, Scientists and Managers, Australia
v
Eastern Health
(B2018/695)

VICE PRESIDENT CATANZARITI

DARWIN, 16 AUGUST 2018

Proposed protected action ballot of employees of Eastern Health.

[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 (Act) for a protected action ballot order in relation to certain employees of Eastern Health (Respondent).

[2] On 15 August 2018, the Fair Work Commission was advised that the Respondent does 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 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.

[5] An order has been separately issued in PR610041.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) sought an order for the conduct of a protected action ballot of employees of Eastern Health (Eastern Health) under the Fair Work Act 2009 (Cth). The application was brought in the Federal Circuit Court, before Justice Edelman. APESMA applied for the order on the basis that it was the certified bargaining agent of a relevant group of employees of Eastern Health, that Eastern Health had refused to engage in good faith bargaining with APESMA, and that the dispute between APESMA and Eastern Health related to the employees' terms and conditions of employment. Eastern Health opposed the application on the basis that the proposed ballot was not in accordance with the relevant provisions of the Fair Work Act, and that the dispute was not in relation to the employees' terms and conditions of employment.

The court held that APESMA had not established that the proposed ballot complied with the requirements of the Fair Work Act. Specifically, the ballot notice did not provide adequate information regarding the proposed protected action and the period of time for which the employees might take protected action. The court further held that the dispute was not in relation to the employees' terms and conditions of employment, but rather in relation to the scope of APESMA's authority to conduct the ballot. Accordingly, the application was dismissed.

The court made no orders as to costs.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established