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

[2013] FWC 6646

[2013] FWC 6646

FAIR WORK COMMISSION

EX TEMPORE DECISION

Fair Work Act 2009
s.437—Application for a protected action ballot order

Australian Municipal, Administrative, Clerical and Services Union
v
Maribyrnong City Council
(B2013/1192)

DEPUTY PRESIDENT SMITH MELBOURNE, 5 SEPTEMBER 2013

Protected action ballot by employees of Maribyrnong City Council.

[1] The following decision, now edited, was issued during proceedings conducted on 3 September 2013.

[2] 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 Maribyrnong City Council.

[3] The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act). The applicant seeks to ballot all employees of Maribyrnong City Council who will be covered by the proposed enterprise agreement and for whom the ASU is their bargaining representative. In considering the matter I must apply s.443 of the Act. In doing so, I am satisfied that the application has been made in accordance with s.437 of the Act.

[4] The next matter to which attention must be given is whether or not the applicant is genuinely trying to reach agreement with the employer of the employees who are to be balloted. In this connection I am satisfied that the applicant is genuinely trying to reach agreement and I have considered the statement of Melissa Wainwright tendered in these proceedings as Exhibit ASU1.

[5] Mr Katz on behalf of the Maribyrnong City Council argued that the rolled-up question created difficulties for employees to understand what indeed they were seeking to do and he said it really was unfair that employees had to adopt an all or nothing approach and that they should be entitled to vote for any particular form of industrial action.

[6] In response, the ASU referred to the decision in John Holland Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers Union (AMWU) [[2010] FWAFB 526].

[7] In that decision the Full Bench said the framing of a question was largely a matter for those drafting the question.

[8] In earlier proceedings I have considered this matter and have reached the view that a rolled-up question is not one which could be rejected by the Commission. In that decision, which was in CPSU and AMWU v CSIRO [[2011] FWA 735], I examined the issue of the John Holland Full Bench and the decision of Vice President Lawler and then reached the conclusion that the question was one which was understandable and could be put to the parties. Whether or not it is the preference that it be done that way is not a matter for the Commission but largely a matter for the applicant. I will issue the order.

DEPUTY PRESIDENT

Appearances:

H. Shing for the Australian Municipal, Administrative, Clerical and Services Union.

G. Katz Solicitor on behalf of the Maribyrnong City Council.

Hearing details:

2013.

Melbourne:

September, 3.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR541359>