Australian Municipal, Administrative, Clerical and Services Union v City of Darebin T/A Darebin City Council Summary

[2023] FWC 836

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v

City of Darebin T/A Darebin City Council

(B2023/319)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 5 APRIL 2023

Proposed protected action ballot of employees of City of Darebin

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 City of Darebin (Respondent).

On 5 April 2023 my Associate was advised that the Respondent did not object to the 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 Ms Tash Wark 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.

This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Mr Stephen Donaldson (Business Owner of TrueVote Pty Ltd). I am satisfied that Mr Donaldson is a fit and proper person to conduct the ballot. I am also satisfied that he is capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. Mr Donaldson has agreed to be the protected action ballot agent and is bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

Therefore I appoint Mr Stephen Donaldson as the protected action ballot agent.

An order has been separately issued in PR760927.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union (Applicant) filed an application under section 437 of the Fair Work Act 2009, seeking a protected action ballot order concerning certain employees of the City of Darebin (Respondent). The Applicant aimed to facilitate a ballot to ascertain the employees' willingness to engage in protected actions, likely related to workplace negotiations. The Fair Work Commission (FWC) presided over the matter, with Deputy President Clancy handling the case. The City of Darebin did not object to the application, allowing the Deputy President to proceed with a determination based on the submitted documents without the need for a hearing.

The legal issues that the FWC had to address pertained to whether the notification time for the proposed agreement was valid and if the requirements outlined in section 443(1) of the Act were met. The Applicant had to demonstrate that it had genuinely attempted to reach an agreement with the City of Darebin. Furthermore, the FWC needed to confirm that the proposed ballot agent, Mr Stephen Donaldson, was a fit and proper person to conduct the ballot, ensuring the secrecy and security of the votes. Mr Donaldson, who is the Business Owner of TrueVote Pty Ltd, agreed to act as the ballot agent and comply with the Privacy Act 1998 regarding the handling of information related to the ballot.

The Deputy President concluded that the Applicant had taken necessary steps in bargaining with the City of Darebin and had genuinely tried to reach an agreement. The notification time for the proposed agreement was deemed valid, and the requirements of section 443(1) of the Act were satisfied. Additionally, Mr Stephen Donaldson was found to be a suitable person to conduct the ballot, capable of ensuring the secrecy and security of the votes. Consequently, the Deputy President appointed Mr Donaldson as the protected action ballot agent. The City of Darebin did not oppose the appointment of Mr Donaldson as the ballot agent. The FWC issued a separate order in PR760927 to formalise the appointment.

This decision highlights the FWC's role in overseeing workplace negotiations and facilitating the process for employees to express their willingness to engage in protected actions. The Deputy President's determination ensures that the ballot can proceed under the Fair Work Act, allowing the employees to have their voices heard in the negotiation process. The appointment of Mr Donaldson as the ballot agent also ensures that the process will be conducted in a secure and confidential manner, respecting the Privacy Act 1998.

Australian Municipal, Administrative, Clerical and Services Union v City of Darebin T/A Darebin City Council

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established