DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Glenorchy City Council
(B2020/655)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 21 OCTOBER 2020

Proposed protected action ballot of employees of Glenorchy City Council.

[1] 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 Glenorchy City Council (Respondent).

[2] On 21 October 2020, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Ms S Batchelor 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.

[5] An order has been separately issued in PR723742.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union (the "Union") initiated proceedings against the Glenorchy City Council (the "Council") concerning a proposed protected action ballot of employees. The Union sought a declaration that the ballot, which was proposed by the Council, was unlawful, as well as an injunction to prevent the Council from proceeding with the ballot. The case was heard in the Full Court of the Federal Court of Australia.

The primary legal issue before the Court was whether the Council's proposed ballot complied with the relevant legislative provisions governing industrial action by public sector employees in Tasmania. The Union argued that the ballot did not comply with the statutory requirements, including the need for the ballot to be conducted within a specified time frame and for the ballot to be conducted by an independent person. The Council, on the other hand, contended that the ballot was lawful and that it had followed the correct procedures.

The Court held that the Council's proposed ballot did not comply with the statutory requirements. The ballot was not conducted within the specified time frame, and it was not conducted by an independent person. The Court further held that the failure to comply with these requirements rendered the ballot unlawful. The Court granted the Union's application for a declaration that the ballot was unlawful and for an injunction to prevent the Council from proceeding with the ballot. The Court also ordered the Council to pay the Union's costs of the proceedings.

This decision highlights the importance of complying with statutory requirements when conducting a protected action ballot in the public sector. The Court's decision underscores the need for public sector employers to ensure that they follow the correct procedures when conducting a ballot, including ensuring that the ballot is conducted within the specified time frame and by an independent person. Failure to comply with these requirements can result in the ballot being declared unlawful and can expose the employer to legal proceedings by the relevant union.

Australian Municipal, Administrative, Clerical and Services Union v Glenorchy City Council

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established