Australian Municipal, Administrative, Clerical and Services Union v Brotherhood of St Laurence

[2023] FWC 628

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v

Brotherhood of St Laurence

(B2023/243)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 16 MARCH 2023

Proposed protected action ballot of employees of Brotherhood of St Laurence

This is an application by the Australian Municipal, Administrative, Clerical and Services Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Brotherhood of St Laurence (Respondent).

The Respondent initially advised my Chambers that it did not object to the protected action ballot order being made, except for its outlined concerns in relation to proposed form of the order and the industrial action identified in some of the ballot questions. The Respondent did not however ultimately outline a statutory basis that would support the application not being granted and nor did it request to be heard further in addition to the correspondence it had sent to my Chambers outlining its position.

After reviewing the Application form, the Statutory Declaration and the correspondence from the parties, I am not persuaded there is a statutory basis for not granting the Applicant’s 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 Kerman Cyrus Daruwalla 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.

An order has been separately issued in PR760320.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union (the Applicant) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning specific employees of Brotherhood of St Laurence (the Respondent). The Applicant sought to conduct a ballot for potential industrial action, which the Respondent initially did not object to, except for concerns regarding the proposed form of the order and some of the industrial action questions in the ballot. However, the Respondent did not provide a statutory basis for opposing the application and did not request a hearing beyond submitting correspondence to the Deputy President outlining its position.

The Deputy President reviewed the application form, the Statutory Declaration from the Applicant, and the correspondence from the parties. The Applicant provided a declaration by Kerman Cyrus Daruwalla, detailing the union's bargaining efforts with the Respondent and affirming its genuine attempts to reach an agreement. The Deputy President concluded that there was no statutory basis to deny the Applicant's request. Consequently, the matter was decided on the papers without a hearing.

Upon examining the evidence, the Deputy President found that the requirements of section 443(1) of the Fair Work Act were satisfied, including the notification period for the proposed agreement. Therefore, the application was granted, allowing the Applicant to proceed with the protected action ballot. An order was subsequently issued in PR760320.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established