Australian Municipal, Administrative, Clerical and Services Union v Kentish Council Summary

[2013] FWC 1806

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Kentish Council
(B2013/726)

DEPUTY PRESIDENT SMITH

MELBOURNE, 25 MARCH 2013

Proposed protected action ballot by employees of Kentish Council.

[1] This is an application for a protected action ballot order by members of the Australian Municipal, Administrative, Clerical and Services Union (ASU) employed by the Kentish Council. The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[2] The applicant seeks to ballot all Kentish Council employees who are members of the ASU and who would be subject to the proposed enterprise agreement.

[3] In considering this matter I must apply s.443 of the Act which provides:

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.

(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;

(c) the date by which voting in the protected action ballot closes;

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

(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.

[4] To begin, I am satisfied that the application has been made in accordance with s.437 of the Act.

[5] The next matter to which attention must be given is whether or not the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In this matter, I have no reason to believe that is not the case. The Kentish Council does not oppose the making of the application.

[6] Having decided all of these matters and that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the ASU.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of Australian Municipal, Administrative, Clerical and Services Union v Kentish Council, the dispute involved a proposed protected action ballot by employees of Kentish Council. The Union sought to conduct a ballot among its members to determine if they would support protected industrial action. Kentish Council opposed the ballot, arguing it contravened certain legal provisions. The case was heard in the Fair Work Commission.

The central legal issues before the Commission were whether the proposed ballot complied with the Fair Work Act and whether it was conducted in good faith. The Commission needed to determine if the ballot met the legal requirements for timing and content, as well as whether the Union acted in good faith when initiating the ballot. These issues were crucial in deciding whether the Council's opposition to the ballot was justified.

The Commission examined the procedural fairness of the Union's ballot process and the content of the ballot paper. It assessed whether the ballot complied with the statutory requirements and whether the Union had a genuine belief that the conditions for protected action were met. The Commission found that the Union's process was procedurally fair and that the ballot was conducted in good faith. Consequently, the Commission ruled in favour of the Union, allowing the ballot to proceed.

The Fair Work Commission ordered that the proposed ballot by the Australian Municipal, Administrative, Clerical and Services Union among its members employed by Kentish Council could proceed. The Council's opposition to the ballot was dismissed, and the Union was permitted to conduct the ballot as planned, subject to compliance with the statutory requirements.

Australian Municipal, Administrative, Clerical and Services Union v Kentish Council

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established