Australian Municipal, Administrative, Clerical and Services Union
[2009] FWA 66
•5 AUGUST 2009
[2009] FWA 66 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
(B2009/10381)
COMMISSIONER GRAINGER | MELBOURNE, 5 AUGUST 2009 |
Proposed protected action ballot by employees of Knox City Council.
[1] The Australian Municipal, Administrative, Clerical and Services Union (ASU, the applicant) made an application for a protected action ballot order under section 447 of the Fair Work Act 2009 (the Act) on 30 July 2009. The application related to employees of the respondent, Knox City Council (the Council) who, at the time of the application, were members of the ASU. A copy of the orders sought was attached to the application. The matter was set down for hearing for 31 July 2009.
[2] At the hearing, the respondent objected to several of the questions to be put to the Union members at clause 5 of the draft order. These objections, relating in a particular to questions 2,3 5,6 8, 9, 10 and 11 of the draft order were based on legislative requirements placed upon the respondent relating largely to issues of occupational health and safety. The applicant accepted the Council’s objections in relation to question ten of the draft order, and requested that the draft order be amended to exclude this question. In relation to the remaining opposed questions, Mr. Smallbone, of ASU, made the following undertaking:
“In general terms that is to provide information to our members by way of a newsletter, providing guidance regarding certain waivers and restrictions to the bans contained and the questions to be put. These are principally for reasons of occupational health and safety, public safety and where there is a legislative requirement which must be met by the respondent and if I could just quickly enumerate those questions where we will be providing further advice both to the members and we will supply a copy, of course, of the newsletter to the respondent.” 1
[3] Mr Smallbone then went on to discuss the details of the undertaking in relation to questions 2, 3, 5, 6, 8, 9 and 11 of the draft order. The respondent accepted the orders sought on the basis of those undertakings. I subsequently issued the protected action ballot order being satisfied that the requirements of s. 443 of the Act had been met. Importantly, at clause 5 of the order, the closing date for the ballot was Thursday 13 August 2009.
[4] On Monday 3 August 2009, John Smallbone wrote to Fair Work Australia. Mr. Smallbone indicated that, after consultation with the Australian Electoral Commission (the AEC), the initial closing date sought at the hearing would not permit enough time to carry out the ballot. The AEC sought to have the time frame for the ballot extended until Monday 17 August 2009. The extensions presumably related to the practical requirements of conducting such ballots. The following day, the ASU contacted my chambers again, this time indicating that the AEC would now like the closing date for voting extended to Monday 23 August.
[5] The Union subsequently filed on 4 August a completed form F35 – Application for variation of a protected action ballot order accompanied by a new draft order. The order reflects the new closing date for the ballot of Monday 23 August. I note that question ten, in line with the discussions at the hearing on Friday 31 July 2009, has been omitted. The Council has indicated via correspondence that it does not oppose the changes sought. However it has expressed some concern that the undertakings made in relation to the original order, as outlined at paragraph [2] of this decision, may not carry the same strength in the subsequent order sought.
[6] The applicant has confirmed that these undertakings will apply to the fresh order the subject of this decision. On the basis of these undertakings and in order the give effect to the variation of the original order under s.447 of the Act, I hereby revoke the protected action ballot order [PR988203] issued 31 July 2009. I grant new orders in the form sought by the ASU in its application dated 4 August 2009. A copy of the new order [PR988244] is attached to this decision. Furthermore, I order that, in relation to questions 2, 3, 5, 6, 8, 9 and the 10 in clause 6 of the order, the undertakings made by the applicant at the initial hearing, as stated above, will apply.
COMMISSIONER
1 Transcript, PN40
Printed by authority of the Commonwealth Government Printer
<Price code A, PR988283>
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