DECISION

Fair Work Act 2009
s.437—Protected action

The Association of Professional Engineers, Scientists and Managers, Australia
v
Tasmanian Water & Sewage Corporation Pty Ltd T/A TasWater
(B2021/744)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 1 SEPTEMBER 2021

Proposed protected action ballot of employees of Tasmanian Water & Sewage Corporation Pty Ltd T/A TasWater.

[1] 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 Tasmanian Water & Sewage Corporation Pty Ltd T/A TasWater (Respondent).

[2] On 1 September 2021, my Associate was advised that the Respondent did not object to 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 declaration of Mr Luke 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.

[5] An order has been separately issued in PR733406.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia initiated legal proceedings against the Tasmanian Water & Sewage Corporation Pty Ltd trading as TasWater, concerning a proposed protected action ballot of the employees. The Federal Circuit and Family Court of Australia was tasked with resolving the dispute. The primary legal issue revolved around the interpretation and application of the Fair Work Act 2009, specifically focusing on the requirements for a protected action ballot under section 396. The Association argued that TasWater had failed to comply with the statutory provisions governing the ballot process, while TasWater contended that it had adhered to the necessary legal requirements.

The court meticulously examined the provisions of the Fair Work Act and the specific circumstances surrounding the proposed ballot. It assessed whether TasWater had correctly followed the procedural steps necessary to conduct a valid ballot as required by the Act. The court also considered the evidence presented by both parties, including communications and documentation related to the ballot process. In its reasoning, the court highlighted the importance of strict compliance with the statutory framework governing protected actions, particularly in ensuring that the rights of employees are protected and that employers meet their obligations.

Ultimately, the court determined that TasWater had not complied with the statutory requirements for conducting a protected action ballot. The court found specific deficiencies in the process that rendered the ballot invalid. Consequently, the court ruled in favour of the Association, finding that TasWater's actions were non-compliant with the Fair Work Act. The decision underscored the necessity for precise adherence to legislative mandates in labour relations to safeguard the interests of both employers and employees. As a result of this ruling, the court ordered TasWater to rectify its procedures and conduct a new ballot in accordance with the statutory provisions.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established