Australian Municipal, Administrative, Clerical and Services Union v Buloke Shire Council

[2023] FWC 2279

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Municipal, Administrative, Clerical and Services Union

Buloke Shire Council

(B2023/952)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 7 SEPTEMBER 2023

Proposed protected action ballot of employees of Buloke Shire Council

This is an application by the Australian Municipal, Administrative, Clerical and Services Union (ASU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Buloke Shire Council (Buloke Council or Employer).
On 6 September 2023, the Commission was advised that Buloke Council, in effect, did not object to the application.
On the basis of the material before me, including the declaration of Mr Raymond King, ASU Organiser, 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 Buloke 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 TrueVote Pty Ltd (TrueVote). TrueVote has been approved as an eligible protected action ballot agent under s 468A of the Act[1] and consequently is authorised to conduct the ballot.
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 21 September 2023. This also establishes the ballot period for the purpose of s.448A(2) of the Act.
An Order has been separately issued in PR765967.

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] TrueVote Pty Ltd [2023] FWC 1446.

Printed by authority of the Commonwealth Government Printer

< PR765966>

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 in relation to certain employees of the Buloke Shire Council. The application was made under section 437 of the Fair Work Act 2009. The proposed ballot aimed to allow the employees to vote on protected industrial action due to the ongoing negotiations for an enterprise agreement. Buloke Shire Council did not object to the application, and the Commission was satisfied that all the requirements under section 443(1) of the Act had been met, including the notification time for the proposed agreement.

The legal issues the court needed to decide were whether the ASU had genuinely attempted to reach an agreement with Buloke Council, and whether all requirements under the Fair Work Act were fulfilled for conducting the ballot. The court also needed to determine the closing date for voting in the ballot and whether the appointed ballot agent, TrueVote Pty Ltd, was eligible to conduct the ballot. The decision involved ensuring that the process complied with the Act and that the rights of the employees and the employer were protected.

The court concluded that the ASU had genuinely tried to reach an agreement with Buloke Council and that all the statutory requirements for the ballot had been met. The Deputy President determined that TrueVote was an approved agent under section 468A of the Act, making it eligible to conduct the ballot. The court set the closing date for voting as 21 September 2023, which also established the ballot period for the purpose of section 448A(2) of the Act. The matter was assigned to another Member of the Commission for the compulsory conciliation conference, ensuring that all bargaining representatives would attend and engage in meaningful negotiations.

The orders issued established the timeline for the ballot and the compulsory conciliation conference, ensuring that the process followed the requirements of the Fair Work Act. The Commission also issued a separate order in PR765967, detailing the specific steps to be taken for the conciliation conference. This decision facilitated the employees' right to vote on the proposed industrial action while protecting the interests of both the union and the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established