Australian Municipal, Administrative, Clerical and Services Union v Ballarat City Council Summary

[2024] FWC 610

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Municipal, Administrative, Clerical and Services Union
v

Ballarat City Council

(B2024/192)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 7 MARCH 2024

Proposed protected action ballot of employees of Ballarat City Council

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

On 6 March 2024, the Commission was advised that Ballarat City Council, in effect, did not object to 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 declaration of Ms Angela McCarthy on behalf of the ASU, setting out the steps taken by the ASU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Ballarat City Council, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Australian Electoral Commission. For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 22 April 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

Minor adjustments to the draft order were made following consultation with the parties.

An order has been separately issued in PR772148.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 30 working days from the making of the Order, as sought in the application. It is also the period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union (ASU) applied to the Fair Work Commission for a protected action ballot order concerning certain employees of the Ballarat City Council under section 437 of the Fair Work Act 2009. The employer did not object to the application, leading to the matter being determined on the available documentation without a hearing. The purpose of the ballot is to ascertain the employees' willingness to engage in protected actions, such as strikes or lockouts, as part of ongoing negotiations for an enterprise agreement. The Commission was satisfied, based on the declaration of Ms. Angela McCarthy on behalf of the ASU, that the union had genuinely attempted to reach an agreement with the employer and that all requirements under section 443(1) of the Act had been fulfilled.

The primary legal issue before the Commission was whether the conditions for a protected action ballot, as outlined in section 437 of the Act, were met. This required an examination of the union's efforts in bargaining with the employer, the notification time for the proposed agreement, and whether all statutory requirements had been adhered to. The Commission's decision to proceed without a hearing was based on the employer's lack of objection, the ASU's declaration detailing the bargaining process, and the union's assertion of genuine negotiation efforts.

After considering the evidence, Deputy President Hampton determined that the ASU had met all the necessary criteria for a protected action ballot. The Commission set the closing date for voting at 22 April 2024, ensuring that the ballot period complied with the statutory requirements and the Australian Electoral Commission's needs. The ballot would be conducted by the Australian Electoral Commission, and minor adjustments to the draft order were made following consultations with the involved parties. This decision also included the assignment of the matter to another Commission member to oversee a compulsory conciliation conference, ensuring that all bargaining representatives would attend ready for meaningful negotiations. Directions may be issued to enforce the attendance of the parties at the conference.

This decision underscores the Commission's role in facilitating fair and lawful bargaining processes between employers and unions, ensuring that all procedural requirements are met to protect the rights of employees and employers alike.

Australian Municipal, Administrative, Clerical and Services Union v Ballarat City Council

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established