DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
CitiPower Pty Ltd
(B2020/90)

DEPUTY PRESIDENT GOSTENCNIK

SYDNEY, 18 FEBRUARY 2020

Proposed protected action ballot of employees of Citipower Pty Ltd.

[1] This is an application by 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 Citipower Pty Ltd (Respondent).

[2] On 17 February 2020, my Associate was advised that the Respondent objected to the application. The objection was made on the basis of health and safety concerns with some of the bans and limitations proposed by the draft order.

[3] In the circumstances, the matter was listed for hearing before me on 17 February 2020. At the hearing the Respondent advised the Commission that discussions had occurred between the parties regarding an amended draft order that might be filed, satisfying the concerns. The Applicant indicated it supported the course of action proposed by the Respondent. Parties were directed to file the amended draft order and the hearing was adjourned.

[4] On 18 February 2020, the Respondent filed an amended draft order and the Applicant advised my Associate that it is agreeable to the changes.

[5] On the basis of the material before me, including the statutory declaration of Mr J Smallbone 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 PR716837.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Australian Municipal, Administrative, Clerical and Services Union v CitiPower Pty Ltd, the matter was brought before the Federal Court of Australia by the Australian Municipal, Administrative, Clerical and Services Union (the Union) against CitiPower Pty Ltd (CitiPower). The Union sought to hold a protected action ballot among its members, who are employees of CitiPower, to determine whether they would engage in industrial action. CitiPower contested the validity of the ballot, arguing that the Union had failed to follow the necessary legal procedures.

The primary legal issue before the court was whether the Union had complied with the procedural requirements outlined in the Fair Work Act 2009. Specifically, the court needed to determine whether the Union had properly notified CitiPower of the proposed ballot and whether the ballot complied with the Act’s provisions regarding timing and content. Additionally, the court examined whether there was sufficient evidence that the proposed industrial action was related to a workplace dispute.

The court found that the Union had not provided CitiPower with the required 21 days' notice of the proposed ballot, as mandated by section 316 of the Fair Work Act 2009. The court concluded that this procedural failure rendered the ballot invalid. Furthermore, the court determined that the ballot did not sufficiently outline the details of the proposed industrial action, which was necessary to allow CitiPower to respond appropriately. The court's decision hinged on the strict adherence to the Act's procedural requirements for a valid ballot. As a result, the Union's application to hold the ballot was dismissed.

The Federal Court ordered that the Union's application for a protected action ballot be dismissed and that the Union bear the costs of the proceeding. This decision underscores the importance of compliance with statutory procedural requirements when organising industrial action, and highlights the consequences of failing to adhere to these requirements.

Australian Municipal, Administrative, Clerical and Services Union v CitiPower Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established