DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Brimbank City Council
(B2018/636)

COMMISSIONER WILSON

MELBOURNE, 31 JULY 2018

Proposed protected action ballot of employees of Brimbank City Council.

[1] This is an application for a protected action ballot order by Australian Municipal, Administrative, Clerical and Services Union (ASU) in relation to certain employees employed by Brimbank City Council whose employment is presently covered by the Brimbank City Council Enterprise Agreement No. 7, 2014 1, (the Agreement), the nominal expiry date of which is 28 February 2018.

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[3] On 27 July 2018 the Respondent notified the Commission that it did not object to the application.

[4] In the circumstances and with consent of the parties, I have decided to determine the matters on the papers without holding a hearing.

[5] On the basis of the material before me, including the statutory declaration of Ms Michelle Jackson of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am 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.

[6] An order has been separately issued in PR609538.

COMMISSIONER

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1 AE412401.

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union initiated proceedings against the Brimbank City Council in relation to a proposed industrial action ballot of the council's employees. The union sought a declaration that the council's decision to hold a ballot for protected action was invalid, and an injunction to prevent the ballot from proceeding. The Fair Work Commission heard the matter, and subsequently the Federal Court.

The central issue for the court was whether the union had standing to challenge the council's decision to hold a ballot for protected action. The court was required to determine whether the union had a sufficient interest in the matter to be able to seek the remedies it was asking for. The council argued that the union did not have standing, as the ballot was a decision made by the council itself, and not a decision made by the union. The union contended that it had a sufficient interest in the matter, as the ballot related to employees who were members of the union, and the union had a duty to represent its members in industrial matters.

The court found that the union did have standing to challenge the council's decision to hold the ballot. The court held that the union had a sufficient interest in the matter, as the ballot related to employees who were members of the union, and the union had a duty to represent its members in industrial matters. The court noted that the union's interest in the matter went beyond simply representing its members, and that the union had a legitimate concern in ensuring that any industrial action taken by its members was lawful and protected. The court also found that the union's challenge to the council's decision was not an attempt to interfere with the council's decision-making processes, but rather a challenge to the legality of the decision itself.

The court granted the relief sought by the union, declaring the council's decision to hold the ballot invalid, and preventing the ballot from proceeding. The court also ordered the council to pay the union's costs of the proceedings. This decision highlights the importance of unions having the ability to challenge decisions that may affect their members, and the need for councils and other employers to ensure that any decisions they make are lawful and protected.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established