Australian Municipal, Administrative, Clerical and Services Union v Ararat Rural City Council

[2022] FWC 1154

[2022] FWC 1154

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v

Ararat Rural City Council

(B2022/407)

DEPUTY PRESIDENT CLANCY MELBOURNE, 13 MAY 2022

Proposed protected action ballot of employees of Ararat Rural City Council.

1. This is an application by the Australian Municipal, Administrative, Clerical and Services Union (ASU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Ararat Rural City Council (the Respondent).

1. On 12 May 2022, my Associate was advised that the Respondent objected to the application. The essence of the objection appeared to be that a negotiation meeting was held on 9 May 2022 where an agreement was reached between the Respondent and the ASU, and a proposed agreement was to be put before the members of the ASU. At 4.39pm on the same day, my Chambers emailed both parties requesting the following information by 9.30am on 13 May 2022:

·   the Respondent to confirm whether it objects to the application on the basis of the statutory considerations outlined in s.443 of the Act, and to outline the statutory basis for its objections (if any); and

·   the ASU to provide its comments in response to the Respondent’s reply.

1. At 9.34am on 13 May 2022, my Chambers received an email from the ASU confirming that a meeting took place between the parties on 9 May 2022 but advising that the ASU had not put an offer forward to its members and as such, no agreement had yet been reached. The ASU confirmed its intention to proceed with its application. To date, the Respondent has not responded to the Commission’s correspondence or outlined a statutory basis for its objection. It has had the opportunity to do so.

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

1. In his Form F34B statutory declaration Mr Matt Steen, ASU Union Organiser, declared the following:

·   bargaining commenced on 16 October 2019;

·   approximately 8 meetings were held between 19 February 2021 and 10 March 2022;

·   on 8 April 2022, the Respondent advised that they had made the decision to cease negotiations on the basis that all claims have been thoroughly discussed and it had nothing further to give;

·   on 26 April 2022, following correspondence from the Respondent on 12 April 2022, the ASU requested that bargaining recommence with a view to completing the negotiations as quickly as practical; and

·   the Respondent agreed to a meeting with the ASU on 9 May 2022.

1. On the basis of the material before me, including the declaration of Mr Matt Steen setting out the steps taken by it in bargaining with the Respondent, I am satisfied that ASU has been, and is, genuinely trying to reach agreement with the Respondent. I am also 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.

1. Further, the ASU sought that a person other than the Australian Electoral Commission be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is TrueVote Pty Ltd (TrueVote). I am satisfied that TrueVote is a fit and proper person to conduct the ballot. I am also satisfied that TrueVote is capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. TrueVote has agreed to be the protected action ballot agent and is bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot. I therefore appoint TrueVote as the protected action ballot agent.

1. I note the Commission must, as far as practicable, determine an application for a protected action ballot order within two working days after the application is made.[1] The ASU initially filed its application for a protected action ballot order at 9.58am on 6 May 2022. At 11.09am on the same day, my Chambers sent an email to the ASU seeking an amended draft order and a statutory declaration from the proposed ballot agent, TrueVote, outlining its fitness to conduct the ballot in accordance with s.444 of the Act. Having received no response from the ASU, my Chambers had to send further correspondence to ASU on 12 May 2022 seeking advice as to whether it intended to proceed with its application. It was only after these 6 days had passed and the following up by my Chambers that an email from the ASU attaching its amended draft order and the statutory declaration from TrueVote was received. The ASU’s lack of attention to its own application is the reason the application has not been determined within two working days.

1. An order has been separately issued in PR741580.

DEPUTY PRESIDENT

[1] Fair Work Act 2009 s.441.

Printed by authority of the Commonwealth Government Printer

<PR741579>