Australian Municipal, Administrative, Clerical and Services Union v Eastern Regional Libraries Corporation Summary

[2022] FWC 1701

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v

Eastern Regional Libraries Corporation

(B2022/627)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 4 JULY 2022

Proposed protected action ballot of employees of Eastern Regional Libraries Corporation.

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 Eastern Regional Libraries Corporation (the Respondent).

On 1 July 2022, the Respondent advised my Chambers that it did not object to the protected action ballot order being made. However, it raised a concern in relation to the form and content of the order, specifically the industrial action identified in questions 3 and 18 of the proposed order. I listed the matter for a Mention at 9:30am on 4 July 2022 however prior to the mention the Respondent advised my Chambers that it withdrew its objection.

As such, I have proceeded to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Lorraine Ercingoz 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.

The Applicant sought that a person other than the Australian Electoral Commission be the ballot agent for the protected action ballot. 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 PR743295.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by the Australian Municipal, Administrative, Clerical and Services Union for a protected action ballot order in relation to certain employees of the Eastern Regional Libraries Corporation. The application was made under section 437 of the Fair Work Act 2009. The union sought to conduct a ballot to allow its members to vote on potential industrial action. Initially, the Eastern Regional Libraries Corporation expressed concerns about the form and content of the ballot, specifically in relation to the industrial action identified in questions 3 and 18 of the proposed ballot order. However, the corporation later withdrew its objection to the ballot order being made.

The Commission had to decide whether the requirements of section 443(1) of the Act had been met, given that the corporation no longer objected to the ballot. Additionally, the Commission needed to determine if the proposed ballot agent, Mr. Stephen Donaldson, was a fit and proper person to conduct the ballot. The union had sought for Mr. Donaldson, the business owner of TrueVote Pty Ltd, to be the ballot agent, a request not opposed by the corporation.

The Commission found that the union had met the notification time requirements and had genuinely tried to reach an agreement with the corporation. It was also satisfied that Mr. Donaldson was a fit and proper person to conduct the ballot, capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. Mr. Donaldson had agreed to be the ballot agent and was bound to comply with the Privacy Act 1998 with respect to handling information relating to the ballot.

Consequently, the Commission appointed Mr. Stephen Donaldson as the protected action ballot agent and determined the matter on the papers without holding a hearing. An order has been separately issued in PR743295.

Australian Municipal, Administrative, Clerical and Services Union v Eastern Regional Libraries Corporation

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established