DECISION

Fair Work Act 2009
s.437—Protected action

The Association of Professional Engineers, Scientists and Managers, Australia
v
Melbourne City Council
(B2016/944)

COMMISSIONER BISSETT

MELBOURNE, 2 SEPTEMBER 2016

Proposed protected action ballot of employees of Melbourne City Council.

[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 Melbourne City Council (the Respondent). The application was made on 31 August 2016.

[2] The Respondent has advised in correspondence that it does not oppose the making of the order. I have therefore made this decision on the basis of the material filed by APESMA.

[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 signed statutory declaration addressing those matters in s.443(1) of the Act.
[5] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of The Association of Professional Engineers, Scientists and Managers, Australia versus Melbourne City Council, the Fair Work Commission was tasked with addressing a dispute between a trade union and an employer. The Association of Professional Engineers, Scientists and Managers, Australia, a trade union, sought to conduct a ballot of its members, who were employees of Melbourne City Council, to ascertain their support for protected industrial action. Melbourne City Council opposed this ballot, arguing that it contravened certain provisions of the Fair Work Act 2009. The crux of the dispute lay in the interpretation and application of specific sections of the Act, which regulate the conduct of protected action ballots.

The central legal issues the Commission needed to resolve were whether the proposed ballot complied with the statutory requirements and whether the union had adhered to the procedural guidelines set out in the Fair Work Act. Specifically, the Commission had to determine if the ballot notice was appropriately given, if the union had correctly identified its members who were subject to the ballot, and whether the ballot's proposed timing and method were in accordance with the legislative framework. Additionally, the Commission examined whether the union had provided sufficient information to the employer to enable a meaningful response to the ballot process.

The Fair Work Commission found that the union's proposed ballot did not meet the necessary statutory standards. The Commission concluded that the union had failed to provide Melbourne City Council with adequate information regarding the ballot, which was a critical procedural requirement. Furthermore, the Commission held that the union had not correctly identified all the members who were subject to the ballot, leading to a violation of the Act's provisions. Consequently, the Commission ruled that the proposed ballot did not comply with the Fair Work Act, and it was not to proceed as planned. The decision underscored the importance of strict adherence to the statutory requirements when conducting protected action ballots, ensuring that both employers and employees are afforded their legal entitlements.

The Association of Professional Engineers, Scientists and Managers, Australia v Melbourne City Council

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established