Australian Municipal, Administrative, Clerical and Services Union v Glenelg Shire Council

[2024] FWC 3240

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

Glenelg Shire Council

(B2024/1520)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 25 NOVEMBER 2024

Proposed protected action ballot of employees of Glenelg Shire Council

This is an application by the Australian Municipal, Administrative, Clerical and Services Union (ASU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Glenelg Shire Council (Glenelg or Employer).

On 21 November 2024, the Commission was advised that the Employer, in effect, 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 Raymond King, ASU Organiser, setting out the steps taken by the ASU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Glenelg, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 9 December 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR781563.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 7 working days from the anticipated commencement of the ballot and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union (ASU or Applicant) applied to the Fair Work Commission for a protected action ballot order under section 437 of the Fair Work Act 2009, in relation to certain employees of Glenelg Shire Council (Glenelg or Employer). The dispute centred around the proposed protected action ballot, which was intended to ascertain the employees' willingness to take protected industrial action. On 21 November 2024, it was communicated that Glenelg did not object to the application. Consequently, Deputy President Clancy decided to proceed with determining the matter based on the available documentation, without the need for a hearing.

The legal issues before the court encompassed whether the requirements of section 443 of the Act were satisfied, specifically if there was a notification period for the proposed agreement, and if the ASU had genuinely attempted to reach an agreement with Glenelg. The court considered the declaration of Raymond King, ASU Organiser, which detailed the bargaining steps undertaken by the ASU and confirmed their genuine efforts to reach an agreement. Given the evidence presented, the court found that all conditions outlined in section 443(1) of the Act had been met. Furthermore, Fair Vote Services Pty Ltd, the appointed ballot agent, was deemed eligible and authorised to conduct the ballot under section 468A of the Act.

The court ordered that the voting for the proposed agreement must close by 9 December 2024, establishing the ballot period for the purpose of section 448A(2) of the Act. This decision effectively set the timeline for the ballot and ensured compliance with legislative requirements. Additionally, the matter was assigned to another member of the Commission for the compulsory conciliation conference, with an expectation that the parties would be directed to attend ready for meaningful negotiations. This order and subsequent directives aimed to facilitate the resolution of the dispute and the negotiation of a new enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established