Australian Municipal, Administrative, Clerical and Services Union v Glen Eira City Council

[2023] FWC 44

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v

Glen Eira City Council

(B2023/7)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 9 JANUARY 2023

Proposed protected action ballot of employees of Glen Eira City Council.

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 Glen Eira City Council (Respondent).

While the Respondent submitted the proposed protected action ballot order was neither required nor necessary, it did not outline a statutory basis that would support the rejection of the application and nor did it request to be heard in addition to the correspondence it had sent to my Chambers outlining its position.

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 Bagg 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 also 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 PR749447.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union (Applicant) sought a protected action ballot order in relation to certain employees of the Glen Eira City Council (Respondent) under section 437 of the Fair Work Act 2009. The matter was determined by Deputy President Clancy of the Fair Work Commission in Melbourne on 9 January 2023. The Respondent did not oppose a hearing and submitted its position via correspondence.

The central issue before the Commission was whether the Applicant had satisfied the requirements to conduct a protected action ballot under the Act. The Applicant had to demonstrate that it had been genuinely trying to reach an agreement with the Respondent and that the notification time in relation to the proposed agreement had been met. Additionally, the Applicant requested that Mr Stephen Donaldson, Business Owner of TrueVote Pty Ltd, be appointed as the ballot agent rather than the Australian Electoral Commission. The Respondent did not object to the appointment of Mr Donaldson as the ballot agent.

Deputy President Clancy found that the Applicant had satisfied the requirements of section 443(1) of the Act and was genuinely trying to reach an agreement with the Respondent. Therefore, the application for a protected action ballot order was approved. Deputy President Clancy also found that Mr Donaldson was a fit and proper person to conduct the ballot, and he agreed to be the ballot agent and comply with the Privacy Act 1998 with respect to the handling of information relating to the ballot.

Accordingly, Mr Stephen Donaldson was appointed as the protected action ballot agent. An order has been separately issued in PR749447.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established