DECISION

Fair Work Act 2009
s.437—Protected action

The Association of Professional Engineers, Scientists and Managers, Australia
v
Epic Pharmacy Services Pty Ltd T/A Epic Pharmacy
(B2019/186)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 7 MARCH 2019

Proposed protected action ballot of employees of Epic Pharmacy Services Pty Ltd T/A Epic Pharmacy.

[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 Epic Pharmacy Services Pty Ltd (Respondent).

[2] On 7 March 2019, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr G Sottile 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 PR705628.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia was involved in a dispute with Epic Pharmacy Services Pty Ltd T/A Epic Pharmacy. The dispute centered around a proposed protected action ballot of employees, which led to litigation in the Fair Work Commission. The Association sought to conduct a ballot to allow employees to express their views on protected industrial action, while Epic Pharmacy opposed this on various grounds, including the potential impact on their operations and compliance with relevant industrial laws.

The primary legal issues before the court were whether the proposed ballot could proceed and, if so, under what conditions. This involved interpreting the relevant sections of the Fair Work Act 2009, specifically those concerning protected action and the rights of employees to engage in industrial action. The court had to consider whether the proposed ballot complied with the statutory requirements, including the notice period and the nature of the industrial action. Additionally, the court examined whether there were any legitimate reasons for Epic Pharmacy to object to the ballot, such as operational disruptions or compliance with health and safety regulations.

In reaching its decision, the court carefully balanced the rights of employees to organise and the legitimate interests of the employer. It found that the proposed ballot did comply with the statutory requirements, and that the employer had not provided sufficient evidence to justify an objection. The court emphasised the importance of facilitating lawful industrial action while also ensuring that any such action does not unduly harm the employer's operations. As a result, the court determined that the ballot could proceed under the conditions specified, providing a clear framework to protect both parties' interests.

The final orders of the court mandated that the ballot proceed as planned, with specific conditions to mitigate any potential operational disruptions. These conditions included a shortened notice period for the ballot results and additional communication requirements between the Association and Epic Pharmacy. The court also directed that any further objections by Epic Pharmacy be accompanied by detailed evidence to support their claims, ensuring a transparent and fair process moving forward.

The Association of Professional Engineers, Scientists and Managers, Australia v Epic Pharmacy Services Pty Ltd T/A Epic Pharmacy

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established