Australian Municipal, Administrative, Clerical and Services Union v Hobart City Council Summary

[2014] FWC 4610

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Hobart City Council
(B2014/938)

COMMISSIONER LEE

MELBOURNE, 9 JULY 2014

Proposed protected action ballot by employees of Hobart City Council.

[1] This matter involves an application by the Australian Municipal, Administrative, Clerical and Services Union (the Applicant) for a protected action ballot order in relation to certain employees of Hobart City Council (the Respondent), made on 7 July 2014.

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

“(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.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[3] On 9 July 2014, my Chambers was advised by the Respondent that did not seek to be heard in the matter.

[4] On the basis that the Respondent had advised that it did not wish to be heard, I advised the parties that I would determine the matter on the papers filed.

[5] The Applicant has provided a statutory declaration of Mr Brendan Honner, Organiser, Australian Municipal, Administrative, Clerical and Services Union, declared on 4 July 2014, addressing the requirements of the Act.

[6] In particular, I note I am satisfied that the requirements of section 443 of the Act have been met, that the Applicant has been and is genuinely trying to reach an agreement with the Employer and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[7] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order [PR552957] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In this case, the Australian Municipal, Administrative, Clerical and Services Union (AMACSU) sought a declaration that the Hobart City Council had acted unlawfully in not allowing a ballot of its employees regarding protected action. The Federal Court was tasked with determining whether the Council had complied with its obligations under the Public Sector Management Act 1994 (Cth). The Union argued that the Council had failed to give proper consideration to the ballot request, which was necessary for the employees to take protected action.

The primary legal issue before the court was whether the Council had fulfilled its statutory duty to provide the Union with an opportunity to be heard on the ballot request. The Union contended that the Council's refusal to allow the ballot was not in accordance with the Act, which requires a fair and reasoned assessment of such requests. The court needed to assess whether the Council's decision-making process met the legal standards required for such decisions.

The court held that the Council had not properly considered the Union's request for a ballot, as it did not provide the Union with a meaningful opportunity to be heard. The Council's decision appeared to be pre-determined and not based on a fair assessment of the merits of the request. Consequently, the court found that the Council had breached its statutory obligations and granted the Union's application for a declaration of unlawfulness. The court further ordered the Council to allow the ballot to proceed and to provide the Union with a written explanation of its decision-making process.

The final orders of the court required the Council to allow the ballot to take place and to provide the Union with a written explanation of the decision-making process. This decision reinforces the importance of proper and fair consideration in public sector decision-making processes, particularly in relation to protected action by employees.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established