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

[2022] FWC 2209

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Association of Professional Engineers, Scientists and Managers, Australia

Sunwater Limited

(B2022/1241)

VICE PRESIDENT CATANZARITI

SYDNEY, 19 AUGUST 2022

Proposed protected action ballot of employees of Sunwater Limited

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 Sunwater Limited (Respondent).

On 17 August 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 Thomas Whibley of the Applicant declared on 16 August 2022, 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 PR744970.

VICE 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 under section 437 of the Fair Work Act 2009 seeking a protected action ballot order concerning certain employees of Sunwater Limited. The application was made in the context of ongoing bargaining negotiations between the Applicant and the Respondent. The Respondent did not oppose the application, and the matter proceeded on the papers before the Commission.

The primary legal issue before the Vice President was whether the Applicant had satisfied the requirements set out in section 443(1) of the Fair Work Act, which governs the conditions for a protected action ballot order. This includes demonstrating that the Applicant had genuinely attempted to reach an agreement with the Respondent and that there was a notification period in relation to the proposed agreement. The Vice President had to consider the statutory declaration provided by Thomas Whibley, which detailed the steps taken by the Applicant in its negotiations with the Respondent.

After reviewing the materials presented, including the statutory declaration, the Vice President determined that the Applicant had met the criteria for a protected action ballot order. The Vice President was satisfied that the Applicant had been genuinely attempting to reach an agreement with the Respondent and that the notification period had been observed. Consequently, the application was successful, and an order was issued in accordance with the Fair Work Act.

This decision underscores the importance of adherence to the statutory requirements when seeking a protected action ballot order. The Vice President's findings confirm that the Applicant had fulfilled its obligations under the Act, thereby enabling the employees to proceed with the proposed ballot. The order issued reflects the Commission's recognition of the legitimate bargaining efforts made by the Applicant in this matter.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established