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

[2013] FWC 9105

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.448—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Launceston City Council
(B2013/1480)

COMMISSIONER LEE

MELBOURNE, 19 NOVEMBER 2013

Application for revocation of protected action ballot order made in B2013/1373.

[1] An application has been made pursuant to s.448 of the Fair Work Act 2009 (the Act) by the Australian Municipal, Administrative, Clerical and Services Union (the ASU), to revoke an order for a protected action ballot. The application was lodged on 18 November 2013. It relates to an Order 1 which I issued on 31 October 2013 in an application by the ASU for a protected action ballot in matter B2013/1373.

[2] Section 448 of the Act deals with revocation of protected action ballot orders and is set out below:

“448 Revocation of protected action ballot order

(1) An applicant for a protected action ballot order may apply to FWA, at any time before voting in the protected action ballot closes, to revoke the order.

(2) If an application to revoke a protected action ballot order is made, FWA must revoke the order.”

[3] The ASU was the applicant for the protected action ballot in matter B2012/1373 and is therefore eligible to make this application under s.448 of the Act. The voting pursuant to the order has not closed. This application is therefore made within the time prescribed by s.448(1) of the Act. In these circumstances, s.448(2) of the Act provides that the Fair Work Commission must revoke the protected action ballot.

[4] An Order 2 will issue accordingly.

COMMISSIONER

1 PR544034

2 PR544751

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Australian Municipal, Administrative, Clerical and Services Union, sought the revocation of a protected action ballot order made by the Fair Work Commission in a previous case. The respondent, Launceston City Council, opposed the application. The dispute arose from a conflict between the union and the council over proposed changes to the terms and conditions of employment of certain council employees. The case was heard in the Full Bench of the Fair Work Commission.
The primary legal issue before the court was whether the applicant had established that the protected action ballot order should be revoked. The applicant argued that the order should be revoked on the basis that there had been a substantial change in circumstances since the order was made, and that the ballot would no longer be effective in achieving the union's objectives. The respondent, on the other hand, contended that there had been no such change in circumstances and that the ballot should proceed as ordered.
In delivering the decision, the court noted that the protected action ballot order was made in the context of ongoing negotiations between the parties. The court found that while there had been some changes in the circumstances since the order was made, these changes did not amount to a substantial change that would render the ballot ineffective. The court further found that the union had not demonstrated that the ballot would no longer be effective in achieving its objectives. Accordingly, the court dismissed the application for revocation of the protected action ballot order. No further orders were made.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established