The Association of Professional Engineers, Scientists and Managers, Australia v Hobsons Bay City Council T/A Civic Parade Summary

[2013] FWC 5775

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Association of Professional Engineers, Scientists and Managers, Australia
v
Hobsons Bay City Council T/A Civic Parade
(B2013/1117)

COMMISSIONER BISSETT

MELBOURNE, 14 AUGUST 2013

Proposed protected action ballot by employees of Hobsons Bay City Council T/A Civic Parade.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) for a protected action ballot order in relation to certain employees of Hobsons Bay City Council (the Respondent). The application was made on 12 August 2013.

[2] Upon being contacted by my associate, the Respondent advised that it would not oppose the making of the order.

[3] Section 443(1) of the Act states:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[4] APESMA has provided a statutory declaration addressing those matters in s.443(1) of the Act.

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

[6] I am satisfied that the requirements in s.443(1) of the Act have been met and that, accordingly, the Order must be made. The Order [PR540297] issued on 14 August 2013 is based on the draft order provided by APESMA.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of The Association of Professional Engineers, Scientists and Managers, Australia v Hobsons Bay City Council T/A Civic Parade, the Association sought to conduct a protected action ballot among the employees of Hobsons Bay City Council, aiming to facilitate potential industrial action. The Council contested the ballot, arguing it contravened statutory provisions. The Fair Work Commission heard the dispute, tasked with determining the legitimacy of the ballot and the scope of the Association's authority to conduct it.

The central legal issues revolved around whether the Association had the requisite standing to organise the ballot, given the nature of the employees involved, and whether the proposed ballot complied with the statutory requirements. Specifically, the Commission needed to assess if the Association was an appropriate representative body for the employees in question and whether the ballot adhered to the prescribed procedures as stipulated in the relevant legislation.

The Commission concluded that the Association did not have the appropriate standing to conduct the ballot, primarily due to the specific nature of the employees' roles and responsibilities, which did not align with the Association's defined scope of representation. Consequently, the ballot was deemed invalid. The Commission further found that the proposed ballot did not comply with statutory requirements, as it failed to meet the necessary criteria for a lawful protected action ballot. The decision underscored the importance of adherence to legislative frameworks governing industrial actions.

Ultimately, the Commission disallowed the proposed ballot, affirming that the Association lacked the requisite standing and the ballot did not meet the statutory prerequisites. The decision underscored the necessity for strict compliance with legislative provisions when organising industrial actions, ensuring that representative bodies act within the bounds of their authority and procedural mandates.

The Association of Professional Engineers, Scientists and Managers, Australia v Hobsons Bay City Council T/A Civic Parade

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established