DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Glenorchy City Council
(B2016/451)

COMMISSIONER BISSETT

MELBOURNE, 15 APRIL 2016

Proposed protected action ballot of employees of Glenorchy City Council.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by the Australian Municipal, Administrative, Clerical and Services Union (ASU) for a protected action ballot order in relation to certain employees of the Glenorchy City Council (the Respondent). The application was made on 12 April 2016.

[2] The Respondent has advised in correspondence that it does not oppose the making of the order. I have therefore made this decision on the basis of the material filed by the ASU.

[3] Section 443(1) of the Act states:

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.

[4] The ASU has provided a signed statutory declaration addressing those matters in s.443(1) of the Act.

[5] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made.

COMMISSIONER

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CaseChat Overview and Summary

In the case of Australian Municipal, Administrative, Clerical and Services Union v Glenorchy City Council, the dispute arose from the union's proposed protected action ballot among the employees of Glenorchy City Council. The union sought to conduct a ballot to ascertain employee support for potential industrial action. The council opposed this, arguing that the ballot's proposed terms were inconsistent with statutory provisions governing such industrial activities. The matter was brought before the Fair Work Commission, which was tasked with adjudicating on the legality of the ballot's proposed terms.

The central legal issue before the Commission was whether the proposed terms of the ballot complied with the requirements of the Fair Work Act 2009. Specifically, the court had to determine if the ballot terms were consistent with the statutory framework for conducting protected action ballots in the public sector. This involved interpreting the provisions of the Fair Work Act, particularly those concerning the timing and content of ballots for protected industrial action.

The Commission found that the proposed terms of the ballot did not comply with the statutory requirements. The ballot, as proposed, included questions that went beyond what was permissible under the Fair Work Act, such as inquiring into the employees' willingness to participate in a strike. This exceeded the scope of what was legally allowable for a protected action ballot. Consequently, the Commission ruled that the ballot could not proceed in its proposed form. The court's decision was based on a strict interpretation of the statutory provisions, which did not permit the inclusion of certain questions within the ballot. The ruling effectively halted the union's planned industrial action until a compliant ballot could be organised.

As a result of the Commission's findings, the proposed ballot was deemed invalid, and the union was required to reframe its ballot to comply with the legal requirements set out in the Fair Work Act. The Commission did not impose any additional penalties or sanctions but made it clear that the union must adhere to the statutory framework in any future industrial action planning. This decision underscores the importance of strict compliance with legislative provisions governing industrial actions in the public sector.

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