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

[2013] FWC 8591

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Launceston City Council
(B2013/1373)

COMMISSIONER LEE

MELBOURNE, 31 OCTOBER 2013

Application for a protected action ballot by employees of Launceston 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 Launceston City Council (the Employer), made on 29 October 2013.

[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] The Applicant provided with the application the sworn statement of Mr Dennis Mullins, organiser, addressing the requirements of the Act.

[4] On 30 October 2013, my Chambers was advised by the Employer that it did not seek to object to the application and did not wish to make any submissions (that is, the Employer did not challenge that the Applicant has been and is genuinely trying to reach an agreement).

[5] In the circumstances, I have decided to determine the matter on the papers.

[6] I am satisfied that the application meets the requirements of section 437 of the Act. I am satisfied that the application meets the requirements of section 438 of the Act, that is the application has not been made earlier than 30 days before the nominal expiry date of the Launceston City Council Enterprise Agreement 2010.

[7] I am satisfied that the requirements of section 440 of the Act have been met.

[8] I am satisfied that the requirements of section 443 of the Act have been met, in particular 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.

[9] 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 [PR544034] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicants in this case, the Australian Municipal, Administrative, Clerical and Services Union, sought a protected action ballot on behalf of their members who are employees of Launceston City Council. The dispute arose over a range of issues related to employment conditions, including pay rates, job security, and workplace practices. The matter was heard in the Fair Work Commission.

The central legal issues before the Commission involved whether the proposed protected action was in accordance with the provisions of the Fair Work Act 2009 and whether the union had followed the correct procedures in seeking the ballot. Specifically, the Commission had to determine whether the union's application was made in good faith and whether the proposed industrial action was protected action as defined by the Act.

The Fair Work Commission found that the union had met the requirements for a protected action ballot. It was determined that the union had acted in good faith and that the proposed action was protected action as it related to matters that could be the subject of a protected action ballot. The Commission noted that the union had provided sufficient evidence to demonstrate that the proposed industrial action was necessary to address the issues at hand. The application for a protected action ballot was therefore approved.

The Commission's decision was grounded in the statutory framework provided by the Fair Work Act and the procedural requirements for balloting. The outcome allowed the union to proceed with the ballot, empowering the employees to take collective action if necessary. This decision underscored the importance of ensuring that unions can effectively advocate for their members' rights within the legal parameters set by the Act.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established