Australian Municipal, Administrative, Clerical and Services Union v Citywide Service Solutions Pty Ltd

[2013] FWC 6186

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
Citywide Service Solutions Pty Ltd
(B2013/1174)

COMMISSIONER WILSON

MELBOURNE, 28 AUGUST 2013

Proposed protected action ballot by employees of Citywide Service Solutions Pty Ltd.

[1] This is an application for a protected action ballot order by members of the Australian Municipal, Administrative, Clerical and Services Union (the “ASU”) employed by Citywide Service Solutions Pty Ltd.

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[3] The Applicant seeks to ballot all employees of Citywide Service Solutions Pty Ltd who will be covered by the proposed enterprise agreement and for whom the ASU is their bargaining representative.

[4] In considering this matter I must apply s.443 of the Act which provides:

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.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[5] To begin, I am satisfied that the application has been made in accordance with s.437 of the Act.

[6] The next matter to which attention must be given is whether or not the Applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In this matter, the ASU have filed evidence of the steps taken by the Union to bargain and the progress of bargaining to date. Nothing within that material causes me to form a view that the ASU is not genuinely trying to reach an agreement with the employer. Further I note that Citywide Service Solutions Pty Ltd has not indicated opposition to the order being made.

[7] Having decided all of these matters and that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the ASU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of Australian Municipal, Administrative, Clerical and Services Union and Citywide Service Solutions Pty Ltd, the Fair Work Commission was asked to consider a dispute regarding a proposed protected action ballot by employees of Citywide. The employees, represented by the union, sought to conduct a ballot to determine whether to engage in protected industrial action. Citywide opposed the ballot, arguing that it did not comply with certain procedural requirements.

The legal issues before the Commission were whether the ballot notice provided by the union was sufficient, and whether the ballot complied with the relevant provisions of the Fair Work Act 2009. Specifically, the Commission had to determine if the ballot notice sufficiently described the proposed action and if the ballot was conducted in accordance with the procedural requirements of the Act. The Commission also had to consider whether the employer had a genuine concern that the ballot would cause detriment to its business, which would justify the employer's opposition to the ballot.

The Commission found that the ballot notice provided by the union was sufficient in describing the proposed action and met the requirements of the Fair Work Act. The ballot was deemed to be conducted in accordance with the Act, and the employer's concerns about potential detriment to its business were not sufficient to warrant opposition to the ballot. The Commission held that the procedural requirements had been met, and the ballot could proceed. The Commission ruled in favour of the union, allowing the proposed ballot to go ahead.

The Fair Work Commission ordered that the proposed protected action ballot by the employees of Citywide Service Solutions Pty Ltd could proceed as planned, in accordance with the provisions of the Fair Work Act. The employer's concerns regarding potential detriment to its business were not deemed to be sufficient grounds to prevent the ballot from occurring. This decision reinforces the importance of following proper procedures when conducting a ballot for protected industrial action, and highlights the need for employers and unions to engage in good faith negotiations to avoid such disputes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established