Australian Municipal, Administrative, Clerical and Services Union v Bytecraft Systems Pty Ltd Summary

[2024] FWC 3503

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

Bytecraft Systems Pty Ltd

(B2024/1640)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 16 DECEMBER 2024

Proposed protected action ballot of employees of Bytecraft Systems Pty Ltd

This is an application by the Australian Municipal, Administrative, Clerical and Services Union acting through its WA branch (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 Bytecraft Systems Pty Ltd (Bytecraft or Employer).

On 13 December 2024, the Commission was advised that the Employer, in effect, did not object to the Application, as amended.

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 Paolo Cecchini, Senior Industrial 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 Bytecraft, 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 (AEC).

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 7 February 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR782491.

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 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, 35 working days from the making of the Order and was the date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union (ASU), acting through its WA branch, has applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Bytecraft Systems Pty Ltd. The application was made on the basis that the union has been genuinely attempting to reach an agreement with the employer and that the notification period for the proposed agreement has been met. The employer did not object to the application, which allowed the Deputy President to determine the matter on the papers without the need for a hearing.

The legal issues before the Deputy President Hampton included whether the union had genuinely been attempting to reach an agreement with the employer and if the notification period for the proposed agreement had been met. The application was supported by a declaration from Paolo Cecchini, Senior Industrial Organiser, outlining the steps taken by the union in bargaining with the employer and confirming that the union had been genuinely trying to reach an agreement. The Deputy President was satisfied that all requirements under section 443(1) of the Act had been fulfilled. The decision also involved setting a closing date for the ballot, which was determined to be 7 February 2025, effectively 35 working days from the date of the order.

The Deputy President concluded that the application met the necessary criteria and granted the order for a protected action ballot. The ballot was to be conducted by the Australian Electoral Commission (AEC). Additionally, the matter will be assigned to another Member of the Commission for a compulsory conciliation conference under section 448A of the Act. This Member will issue an order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference, with likely directions to ensure meaningful negotiations.

An order has been issued, and this matter will proceed to a compulsory conciliation conference under section 448A of the Fair Work Act. This decision sets the stage for further negotiations between the parties, with the aim of reaching an agreement and potentially avoiding protected action.

Australian Municipal, Administrative, Clerical and Services Union v Bytecraft Systems Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established