Australian Municipal, Administrative, Clerical and Services Union v Circular Head Council

[2022] FWC 3314

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union

Circular Head Council

(B2022/1835)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 16 DECEMBER 2022

Proposed protected action ballot of employees of Circular Head Council.

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 Circular Head Council (the Respondent).

The Respondent raised concerns in relation to the form and content of the order of the proposed order. In further correspondence to my Chambers, the Respondent confirmed it did not wish to be heard further in relation to its objection. After reviewing the Application form, the Statutory Declaration and the correspondence from the parties, and while acknowledging the concerns raised by the Respondent, I cannot see a statutory basis upon which the Applicant’s application should be rejected.

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 Mr Michael McLoughlin 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 PR749010.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the Australian Municipal, Administrative, Clerical and Services Union (Applicant) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to employees of Circular Head Council (the Respondent). The primary issue for the Deputy President to decide was whether the application for the ballot should be approved, despite the Respondent's concerns about the form and content of the proposed order. The Deputy President also had to consider whether the application met the requirements of section 443(1) of the Act and whether the union had genuinely attempted to reach an agreement with the employer.

The Deputy President reviewed the application form, the statutory declaration, and correspondence from both parties. Despite the Respondent's concerns and its decision not to be heard further, the Deputy President found no statutory basis to reject the Applicant's application. The Deputy President determined that the matter could be decided on the papers without holding a hearing. The Deputy President was satisfied that the notification time for the proposed agreement existed and that the requirements of section 443(1) of the Act had been met based on the material presented, including the declaration of Mr Michael McLoughlin of the Applicant.

The Deputy President granted the application and issued an order in PR749010, permitting the proposed protected action ballot of the employees of Circular Head Council. This decision was based on the Applicant's evidence of genuine attempts to reach an agreement with the Respondent and the absence of any valid reason to reject the application under the Fair Work Act 2009. The Deputy President's decision was made without a hearing and on the papers presented by both parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established