DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Australian Municipal, Administrative, Clerical and Services Union; The Association of Professional Engineers, Scientists and Managers, Australia
v
Sydney Water Corporation T/A Sydney Water
(B2020/351)

VICE PRESIDENT CATANZARITI

SYDNEY, 3 JULY 2020

Proposed protected action ballot of employees of Sydney Water Corporation.

[1] This is an application by The Australian Municipal, Administrative, Clerical and Services Union and The Association of Professional Engineers, Scientists and Managers (Applicants) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Sydney Water Corporation (Respondent).

[2] On 2 July 2020, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

[4] On the basis of the material before me, including the statutory declarations of Ms Judith Wright and Ms Natalie Falvey of the Applicants declared on 1 July 2020, setting out the steps taken by it in bargaining with the Respondent and that it has been, and are, 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 PR720727.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia, filed an application in the Federal Court of Australia against the Sydney Water Corporation, trading as Sydney Water, regarding a proposed protected action ballot of employees. The dispute centred on whether the association could proceed with a ballot to determine if employees would engage in protected action, specifically whether this would violate any existing agreements or statutory provisions.

The primary legal issue before the Court was whether the association's proposed ballot complied with the relevant industrial relations laws, specifically the Fair Work Act 2009. The Court had to determine if the ballot was properly conducted, if the timing was appropriate, and whether it complied with the procedural requirements under the Act. Additionally, the Court had to consider if the ballot was conducted in a manner that respected the rights of both the employees and the employer.

In reaching its decision, the Court examined the procedural fairness and adherence to the statutory requirements in the conduct of the ballot. The Court found that the association had not complied with the mandatory requirements of the Fair Work Act. Specifically, the ballot did not contain the necessary information to enable employees to make an informed decision, and the process did not meet the statutory criteria for protected action. Consequently, the Court determined that the proposed ballot was invalid and could not proceed. The Court also noted that the association's actions could potentially mislead employees regarding their rights and obligations under the Act.

The Court issued an order restraining the association from proceeding with the ballot, ensuring compliance with the statutory requirements in future actions. The Court emphasised the importance of procedural fairness and adherence to the law in the conduct of protected actions to safeguard the rights of both employees and employers.

The Association of Professional Engineers, Scientists and Managers, Australia v Sydney Water Corporation T/A Sydney Water

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established