The Association of Professional Engineers, Scientists and Managers, Australia v Hydro-Electric Corporation T/A Entura Summary

[2022] FWC 2482

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

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

Hydro-Electric Corporation T/A Entura

(B2022/1376)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 15 SEPTEMBER 2022

Proposed protected action ballot of employees of Hydro-Electric Corporation T/A Entura.

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 Hydro-Electric Corporation T/A Entura (the Respondent).

On 15 September 2022, my Associate was advised that the Respondent raised concerns in relation to certain forms of the proposed industrial action identified in the draft order accompanying the application. I determined a Mention should be conducted, during which I discussed these concerns with the parties and other matters subsequently raised. During the Mention, the Applicant consented to an extension of the notice period required for the taking of industrial action from 3 working days to 5 working days. Following the Mention, the Applicant submitted an amended draft order and the parties were able reach a consent position.

With the parties having resolved the various matters raised, I have proceeded to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Mr Luke Michael Crowley 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. I am also satisfied based on the position of the parties and the material before me that there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) of the Act being longer than 3 working days and that I should exercise the discretionary power in s.443(5) of the Act and specify a period of 5 working days.

An order has been separately issued in PR745909.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia lodged an application with the Fair Work Commission seeking a protected action ballot order in relation to certain employees of Hydro-Electric Corporation T/A Entura. The application was made under section 437 of the Fair Work Act 2009 and concerned a proposed industrial action ballot. The Fair Work Commission is the tribunal established under the Fair Work Act to hear and decide on matters related to workplace relations and industrial disputes.

The legal issues before the Fair Work Commission included whether the association had met the notification time requirements under section 443(1) of the Act and whether there were exceptional circumstances justifying an extension of the notice period for the industrial action from the statutory minimum of three working days to five working days. The association argued that it had been genuinely attempting to reach agreement with Hydro-Electric Corporation and that there were exceptional circumstances warranting the longer notice period.

The Fair Work Commission found that the association had satisfied the notification time requirements and that there were indeed exceptional circumstances justifying the extension of the notice period to five working days. The association had provided a declaration from Mr Luke Michael Crowley outlining the bargaining process and its genuine attempts to reach an agreement with the corporation. The Deputy President concluded that the association had met the requirements of section 443(1) and exercised the discretion under section 443(5) to specify a five working day notice period. With the parties having reached a consent position, the Fair Work Commission determined the application on the papers without holding a hearing.

An order was issued in PR745909 granting the association's application for a protected action ballot order with a five working day notice period. The Fair Work Commission's decision was based on the evidence and arguments presented by the association and the corporation during the Mention and subsequent submissions. The Deputy President's reasoning focused on whether the association had satisfied the notification time requirements and if exceptional circumstances justified extending the notice period beyond the statutory minimum.

The Association of Professional Engineers, Scientists and Managers, Australia v Hydro-Electric Corporation T/A Entura

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established