The Association of Professional Engineers, Scientists and Managers, Australia v The Australian Capital Territory

[2023] FWC 792

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

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

The Australian Capital Territory

(B2023/289)

VICE PRESIDENT CATANZARITI

SYDNEY, 31 MARCH 2023

Proposed protected action ballot of employees of The Australian Capital Territory

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 The Australian Capital Territory (Respondent).

On 31 March 2023, 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 Daniel Edward Willard Griffin of the Applicant declared on 28 March 2023, 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 PR760794.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) filed an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of the Australian Capital Territory (ACT). The application was made in response to the parties' inability to reach an agreement during their bargaining process. The Fair Work Commission (FWC) was notified on 31 March 2023 that the ACT did not oppose the application, which led to the decision to determine the matter on the available papers without a hearing.

The primary legal issue the FWC had to decide was whether the requirements for a protected action ballot were met, specifically under section 443(1) of the Act. This required the FWC to consider the statutory declaration from Daniel Edward Willard Griffin of APESMA, which detailed the bargaining steps taken and affirmed that the association had been genuinely trying to reach an agreement with the ACT. The FWC needed to ascertain if there was a notification period for the proposed agreement and if APESMA fulfilled the necessary criteria for proceeding with a ballot.

In deciding the matter, the FWC considered the statutory declaration and the information provided. Vice President Catanzariti was satisfied that the notification time for the proposed agreement existed and that APESMA had met the requirements of section 443(1) of the Act. Consequently, the FWC determined that the application for a protected action ballot should proceed. The decision was rendered on 31 March 2023, and an Order was subsequently issued in PR760794.

This ruling confirms the FWC's decision to allow the protected action ballot to proceed, based on the provided evidence and the absence of opposition from the ACT. The FWC's decision underscores the importance of genuine bargaining efforts and compliance with the statutory requirements for such applications.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established