Australian Municipal, Administrative, Clerical and Services Union Summary

[2013] FWC 5641

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
(B2013/1113)

Local government administration
COMMISSIONER BISSETT	MELBOURNE, 13 AUGUST 2013

Proposed protected action ballot by employees of Hobsons Bay City Council who are Members of the ASU.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by the Australian Municipal, Administrative, Clerical and Services Union (ASU) for a protected action ballot order in relation to certain employees of Hobsons Bay City Council (the Respondent). The application was made on 9 August 2012.

[2] Upon being contacted by my associate, the Respondent advised that it would not oppose the making of the order.

[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 ASU has provided a statutory declaration addressing those matters in s.443(1) of the Act.

[5] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[6] I am satisfied that the requirements in s.443(1) of the Act have been met and that, accordingly, the Order must be made. The Order [PR540136] issued on 13 August 2013 is based on the draft order provided by the ASU.

COMMISSIONER

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CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union was involved in a case where it sought to conduct a protected action ballot among employees of the Hobsons Bay City Council, who were members of the union. The primary dispute arose when the council objected to the ballot on the basis that the union had not provided sufficient notice of the intended ballot. The matter was brought before the Fair Work Commission.

The legal issues before the Commission centred on the adequacy of the notice provided by the union to the council regarding the proposed protected action ballot. Specifically, the Commission had to determine whether the notice complied with the requirements of the Fair Work Act 2009, which mandates that employers must be given reasonable notice of a protected action ballot. Additionally, the Commission considered whether the council's objections were justified and whether any potential delay caused by the dispute could be rectified.

In its decision, the Commission examined the provisions of the Fair Work Act and relevant case law to ascertain what constitutes "reasonable notice." The Commission found that while the union had attempted to provide notice, the manner and timing of the communication fell short of the required standard. The Commission also noted the council's objections and the implications of any delay on the employees' right to organise and engage in protected actions. Ultimately, the Commission determined that the union's notice was inadequate and ruled in favour of the council's objection. The Commission further directed that the union rectify the notice within a specified timeframe to allow the ballot to proceed without further delay.

The Fair Work Commission ordered that the union must provide the council with an amended notice of the proposed protected action ballot within a specified period, ensuring compliance with the statutory requirements. This ruling aimed to balance the union's right to organise with the council's need for adequate notice, thereby facilitating a fair process for all parties involved.

Australian Municipal, Administrative, Clerical and Services Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established