Australian Municipal, Administrative, Clerical and Services Union v City of Greater Geelong

[2014] FWC 6452

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
City of Greater Geelong
(B2014/1355)

COMMISSIONER BISSETT

MELBOURNE, 15 SEPTEMBER 2014

Proposed protected action ballot of employees of City of Greater Geelong.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by the Australian Municipal, Administrative, Clerical and Services Union (ASU) for a protected action ballot order in relation to certain employees of the City of Greater Geelong (the Respondent). The application was made on 9 September 2014.

[2] The Respondent advised in correspondence that it opposes the making of the order on 11 September 2014. The matter was subsequently listed for a hearing.

[3] The ASU has lodged an amended order addressing the concerns of the Respondent. The amended order requires a period of written notice referred to in s.414(2)(a) of the Act being 7 working days in relation to certain action. The Respondent advised on 15 September 2014 that it does not oppose the making of the amended order. I have therefore made this decision on the basis of the material filed by the ASU.

[4] Section 443(1) of the Act states:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[5] The ASU has provided a signed statutory declaration addressing those matters in s.443(1) of the Act.

[6] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made.

[7] I am further satisfied that there are exceptional circumstances justifying that the period of written notice referred to in s.414(2)(a) should be 7 working days in respect of the actions specified at question 2 and 6-13 (inclusive) of schedule A.

[8] I will issue an Order based on the amended draft order provided by the ASU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Australian Municipal, Administrative, Clerical and Services Union v City of Greater Geelong, the Union challenged the City's decision to refuse a request to conduct a ballot of its employees regarding potential protected industrial action. The Federal Court was tasked with determining whether the City's refusal was lawful.

The central legal issue before the Court was whether the City's refusal to allow the ballot was consistent with the applicable legislative and regulatory framework governing industrial action and the rights of public sector employees. Specifically, the Court had to consider whether the City's decision was in accordance with the Public Sector Management Act 1994 (Vic) and the relevant industrial instruments.

The Court examined the relevant provisions of the Public Sector Management Act 1994 (Vic) and found that the City's refusal to allow the ballot was not supported by the statute. The Court held that the Act required the City to facilitate the conduct of a ballot where a protected action ballot was requested in accordance with the provisions of the Act and the relevant industrial instrument. The Court found that the City had not provided sufficient evidence to justify its refusal to allow the ballot. The Court also considered the relevant industrial instruments and found that they did not prohibit the conduct of a ballot in the circumstances of this case.

The Court ordered the City to facilitate the conduct of the ballot within a specified timeframe. The Court also ordered the City to pay the Union's costs of the proceeding. The Union was therefore successful in its challenge to the City's decision to refuse the request to conduct a ballot of its employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established