The Association of Professional Engineers, Scientists and Managers, Australia v EnergyAustralia NSW Pty Ltd

[2023] FWC 784

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

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

EnergyAustralia NSW Pty Ltd

(B2023/284)

VICE PRESIDENT CATANZARITI

SYDNEY, 31 MARCH 2023

Proposed protected action ballot of employees of EnergyAustralia NSW Pty Ltd

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 EnergyAustralia NSW Pty Ltd (Respondent).

The Respondent neither consented nor objected to the application.

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

On the basis of the material before me, including the statutory declaration of Shadi Behpour of the Applicant declared on 31 March 2023, 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.

An Order has been separately issued in PR760780.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) lodged an application with the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of EnergyAustralia NSW Pty Ltd. The application was brought as APESMA sought to organise a ballot of its members who were employees of EnergyAustralia. The company did not consent to nor did it object to the application. The matter was determined by Vice President Catanzariti without a hearing, based on the material submitted by the Applicant.

The legal issues before the Commission were whether APESMA had satisfied the requirements for a protected action ballot under the Fair Work Act. Specifically, the Commission had to consider if there was a notification time in relation to the proposed agreement, and if the statutory requirements under section 443(1) of the Act had been met. The Commission also needed to assess the steps taken by APESMA in its bargaining with EnergyAustralia to ensure the association had genuinely been trying to reach an agreement.

The Fair Work Commission found that APESMA had met the statutory requirements for a protected action ballot. This conclusion was based on the statutory declaration provided by Shadi Behpour of APESMA, which outlined the steps taken in bargaining with EnergyAustralia and confirmed the association's genuine attempts to reach an agreement. Vice President Catanzariti was satisfied that the notification time in relation to the proposed agreement had been met, and the requirements in section 443(1) of the Act were fulfilled. Consequently, the Commission granted the application for a protected action ballot order.

In light of the findings, an Order was issued in PR760780, permitting APESMA to proceed with the ballot of its members who are employees of EnergyAustralia NSW Pty Ltd.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established