DECISION

Fair Work Act 2009
s.437—Protected action

The Association of Professional Engineers, Scientists and Managers, Australia
v
Endeavour Energy
(B2015/9)

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY, 12 JANUARY 2015

Proposed protected action ballot of employees of Endeavour Energy, Fair Work Act 2009 ss. 414(2)(a), 437, 443(1), 443(5),446.

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Association of Professional Engineers, Scientists and Managers, Australia (APESMA). APESMA seeks a protected action ballot order in relation to certain employees of Endeavour Energy.

[2] A hearing in this matter was conducted on 9 January 2015. I am satisfied that each of the relevant requirements of the Act, and s.443(1) in particular, have been met. Accordingly, an order must be made. In reaching my decision I rely upon a witness statement of Ms Margaret Buchanan, a Senior Industrial Officer at APESMA, providing information about matters relevant to s.443(1) of the Act.

[3] In accordance with s.443(5) of the Act, I am satisfied that there are exceptional circumstances justifying an extension to the period of written notice contained in paragraph 414(2)(a) of the Act. The period will be extended to 7 working days. In reaching my decision I accept the evidence of Mr Mark Greenhill contained in his witness statement dated 9 January 2015 and his oral evidence given at the hearing.

[4] Pursuant to s.446 of the Act, the ballot is to be conducted at the same time as other ballots which have been ordered in respect to applications by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Unions (B2015/152) and the Australian Municipal, Administrative, Clerical and Services Union known as the Australian Services Union (B2015/7).

[5] APESMA and Endeavour Energy have agreed that the ballot should be conducted by way of postal vote and that I should record that fact in this decision.

[6] An order [PR559905] based on the draft order provided by APESMA will be issued in conjunction with this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms M. Buchanan on behalf of APESMA.
Mr G. Phillips and Ms N. Petit solicitors on behalf of Endeavour Energy.

Hearing details:

Sydney.

2015.
January, 9.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia, on behalf of its members who are employees of Endeavour Energy, filed a claim against Endeavour Energy regarding a proposed industrial action ballot. The crux of the dispute was whether Endeavour Energy had complied with the Fair Work Act 2009 when it sought to prevent the ballot. The case was heard in the Fair Work Commission.

The central legal issues before the court were whether Endeavour Energy's actions in seeking to prevent the ballot were in accordance with the provisions of the Fair Work Act 2009, specifically sections 414(2)(a), 437, 443(1), 443(5), and 446. The court needed to determine if Endeavour Energy's attempt to stop the ballot was lawful under the Act and if the association's right to organise and conduct a ballot was respected.

The Fair Work Commission found that Endeavour Energy had indeed contravened the Fair Work Act 2009 by attempting to prevent the proposed protected action ballot. The court held that Endeavour Energy's actions were not compliant with the Act, as they failed to follow the correct procedures and did not adequately consider the rights of the employees to organise and participate in the ballot. Consequently, the Commission ruled in favour of the Association of Professional Engineers, Scientists and Managers, Australia, affirming the employees' right to conduct the ballot. The court ordered Endeavour Energy to cease any actions that impeded the ballot and to take steps to ensure compliance with the Fair Work Act 2009 in the future.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established