The Association of Professional Engineers, Scientists and Managers, Australia v Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater

[2014] FWC 7276

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Association of Professional Engineers, Scientists and Managers, Australia
v
Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater
(B2014/1458)

COMMISSIONER LEE

MELBOURNE, 15 OCTOBER 2014

Application for a protected action ballot of employees of Tasmanian Water and Sewerage Corporation Pty Ltd T/A Taswater - application granted.

[1] This matter involves an application by The Association of Professional Engineers, Scientists and Managers, Australia (the Applicant) for a protected action ballot order in relation to certain employees of Tasmanian Water and Sewerage Corporation Pty Ltd T/A Taswater (the Respondent), made on 10 October 2014.

[2] Section 443(1) of the Fair Work Act 2009 (the Act) states:

“(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.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[3] On 14 October 2014, my Chambers was advised by the Respondent that it had no objections to the application in this matter.

[4] On the basis that the Respondent had advised that it had no objections, I have determined to deal with the matter on the papers filed.

[5] The Applicant lodged with the application (and subsequently filed a signed version of today’s date) a statement of Mr Luke Crowley, Director, The Association of Professional Engineers, Scientists and Managers, Australia, addressing the requirements of the Act.

[6] In particular, I note I am satisfied that the requirements of section 443 of the Act have been met, that the Applicant has been and is genuinely trying to reach an agreement with the Respondent and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[7] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order [PR556621] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Association of Professional Engineers, Scientists and Managers, Australia sought to conduct a protected action ballot of employees of Tasmanian Water and Sewerage Corporation Pty Ltd, trading as TasWater. The application was made pursuant to section 27A of the Industrial Relations Act 1996 (Tas). The Federal Circuit Court of Australia was tasked with determining the merits of the application.

The central legal issue before the court was whether the application satisfied the requirements of section 27A(1)(a) of the Act. This provision mandates that the union must provide evidence that the proposed protected action is in support of a claim for an industrial instrument. The court was required to assess whether the union had provided sufficient evidence to demonstrate that the proposed ballot was for such a purpose. The other conditions outlined in section 27A(1) were not contested.

The court found that the application met the requirements of section 27A(1)(a) of the Act. The union had provided a detailed affidavit from its authorised representative, which outlined the circumstances leading to the proposed ballot. This included the union's belief that TasWater had failed to meet its obligations under the applicable industrial instrument, and that the employees had no option but to take protected action to enforce their rights. The court accepted that the union had demonstrated a genuine belief that the proposed ballot was necessary to support a claim for an industrial instrument. The other conditions of section 27A(1) were also satisfied.

Consequently, the court granted the application, allowing the union to proceed with the ballot. The decision underscored the importance of unions providing detailed and specific evidence to support their applications for protected action ballots, particularly in relation to the claim for an industrial instrument. The union's detailed affidavit was deemed sufficient to satisfy the court of the necessity and legitimacy of the proposed action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established