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
(B2021/746)

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 PR733431.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of The Association of Professional Engineers, Scientists and Managers, Australia v Tasmanian Water & Sewage Corporation Pty Ltd T/A TasWater, the dispute arose when the Association sought to conduct a ballot of employees of TasWater to determine if they were prepared to engage in protected action. The Tasmanian Water & Sewage Corporation Pty Ltd, trading as TasWater, contested the proposed ballot, leading to proceedings in the Fair Work Commission.

The central legal issue before the Commission was whether the proposed ballot by the Association was lawful and could proceed under the Fair Work Act 2009. Specifically, the Commission needed to determine if the ballot was genuinely intended to facilitate protected action and if it complied with the statutory requirements set out in the Act. This included assessing whether the ballot notice was appropriately drafted and whether it was likely to incite employees to engage in unlawful activities.

The Commission examined the content and purpose of the ballot notice, considering whether it was intended to facilitate protected action. The notice in question contained language that was deemed potentially misleading or coercive, which raised concerns about its compliance with the statutory requirements. The Commission found that the ballot notice did not meet the necessary standards as it could incite employees to engage in activities that were not genuinely related to protected action. Consequently, the Commission ruled that the ballot could not proceed as it did not align with the provisions of the Fair Work Act. This decision was based on the interpretation that the ballot notice did not genuinely serve the purpose of facilitating protected action, as required by law. The final orders of the Commission reflected this decision, prohibiting the Association from proceeding with the ballot as it was not in compliance with the statutory framework.

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