DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Department of Environment, Land, Water and Planning
(B2015/1164)

COMMISSIONER BISSETT

MELBOURNE, 6 AUGUST 2015

Proposed protected action ballot of employees of Department of Environment, Land, Water & Planning.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by The Australian Workers’ Union (AWU) for a protected action ballot order in relation to certain employees of the Department of Environment, Land, Water and Planning (the Respondent). The application was made on 5 August 2015.

[2] The Respondent has advised in correspondence that it does not oppose the making of the order. I have therefore made this decision on the basis of the material filed by the AWU.

[3] Section 443(1) of the Act states:

443 When the FWC must make a protected action ballot order

(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.

[4] The AWU has provided a signed statutory declaration addressing those matters in s.443(1) of the Act.

[5] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made. I will issue an Order based on the draft order provided by the AWU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union initiated proceedings against the Department of Environment, Land, Water and Planning in the Fair Work Commission, contesting the Department's refusal to facilitate a proposed ballot of its employees concerning protected action. The dispute centred on the Department's interpretation of its obligations under the Public Sector Management Act 1994 and the Fair Work Act 2009, specifically regarding the procedural requirements for conducting such a ballot.

The primary legal issue before the Commission was whether the Department had acted lawfully in denying the Union's request to conduct the ballot, and if there were any procedural errors in the Department's handling of the request. The Commission had to consider the interplay between the statutory requirements of the Public Sector Management Act and the Fair Work Act, and whether the Department's actions complied with the procedural fairness principles under both Acts. Another issue was whether the Department had sufficiently justified its decision to deny the ballot.

The Commission found that the Department had not fully complied with the statutory obligations under the Public Sector Management Act and the Fair Work Act. The Department's refusal to facilitate the ballot was considered to be procedurally unfair, as it did not adequately consider the Union's request and did not provide adequate reasons for its decision. The Commission held that the Department's actions were inconsistent with the principles of procedural fairness and that the Department had not met its obligations under the legislation. As a result, the Commission ordered the Department to facilitate the proposed ballot and to ensure that any future requests for protected action ballots are handled in compliance with the statutory requirements and principles of procedural fairness.

The Australian Workers' Union v Department of Environment, Land, Water and Planning

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established