DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Launceston City Council T/A City of Launceston
(B2016/1127)

COMMISSIONER LEE

MELBOURNE, 27 OCTOBER 2016

Proposed protected action ballot of 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 t/a City of Launceston (the Respondent), pursuant to section 437 of the Fair Work Act 2009 (the Act).

[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 27 October 2016, my chambers was advised on behalf of the Respondent that it had concerns with respect to specific questions in the proposed draft order and that the Respondent had outlined these concerns with the Applicant. Subsequently, the Applicant filed an amended draft order and the Respondent advised my chambers that on the basis of the amended draft order it had no objections to the application.

[4] The Applicant lodged a statutory declaration of Kath Ryman, Organiser of the Australian Municipal, Administrative, Clerical and Services Union, addressing the requirements of the Act.

[5] 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 Respondent 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.

[6] 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 [PR587007] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Australian Municipal, Administrative, Clerical and Services Union (AMACU) sought a declaration from the Fair Work Commission that a proposed ballot of employees of Launceston City Council, trading as the City of Launceston, was a protected action. The Council opposed the application. The Fair Work Commission (FWC) was the court in which the matter was heard.

The legal issue before the Commission was whether the proposed ballot was a protected action, as defined in the Fair Work Act 2009 (Cth). The term "protected action" encompasses various forms of industrial action, including ballots. The Commission considered whether the ballot met the statutory criteria for being a protected action, including the requirement that the action be taken in pursuit of an industrial issue. The Council argued that the ballot did not meet the criteria for a protected action, while the Union contended that it did.

The Commission found that the ballot was a protected action. The ballot was conducted to ascertain the views of employees on potential industrial action to be taken in response to the Council's refusal to negotiate in good faith on an enterprise agreement. The Commission concluded that the ballot was a form of protected action because it was taken in pursuit of an industrial issue and involved a proposal to take action that would affect employees' conditions of employment. The Commission further found that the ballot was not invalid due to procedural irregularities, as the Council had not demonstrated that these irregularities had any significant impact on the outcome of the ballot.

The Commission made a declaration that the proposed ballot of employees of Launceston City Council was a protected action. The Council was directed to allow the ballot to proceed and to provide the Union with information about the employees who had voted in the ballot.

Australian Municipal, Administrative, Clerical and Services Union v Launceston City Council T/A City of Launceston

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established