Australian Municipal, Administrative, Clerical and Services Union v Metropolitan Fire & Emergency Services Board

[2013] FWC 5370

[2013] FWC 5370

FAIR WORK COMMISSION

DECISION

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

Australian Municipal, Administrative, Clerical and Services Union
v
Metropolitan Fire & Emergency Services Board
(B2013/1087)

COMMISSIONER WILSON MELBOURNE, 5 AUGUST 2013

Proposed protected action ballot by employees of Metropolitan Fire & Emergency Services Board.

[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 Metropolitan Fire & Emergency Services Board.

[2] The application was lodged with the Commission on 1 August 2013 pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[3] I am satisfied that the application has been made in accordance with section 437.

[4] The provisions of s.438 of the Act include that if one or more enterprise agreements cover the employees who will be covered by the proposed enterprise agreement, an application for a protected action ballot order must not be made earlier than 30 days before the nominal expiry date of the enterprise agreement. I find this provision to have been met. The nominal expiry date of the existing agreement is 30 June 2011 and the ASU’s application for a protected action ballot order was made on 31 July 2013.

[5] The ASU submitted it has been genuinely trying to reach agreement with the MFB in this matter and the MFB did not dispute this.

[6] The application follows an application made by the United Firefighters’ Union of Australia (B2013/1082) on 31 July 2013, in relation to the same proposed agreement which would replace the Metropolitan Fire and Emergency Services Board Administrative and Operational Support Staff Agreement 2005 (as varied in Order PR983901).

[7] In the hearing the parties confirmed that the questions sought to be included in the ballot of employees by the ASU in this application are the same 73 questions that were sought to be included in the application made by the United Firefighters’ Union of Australia in B2013/1082.

[8] Since the Agreement and the questions sought in the ballot by the ASU have been confirmed by the parties as identical to those referenced in matter B2013/1082, the parties were asked in the hearing whether they would be content for this Decision and Order to also be identical, which they confirmed. In the case of the MFB, they were asked whether they made the same objections to the proposed ballot questions in this matter as in the B2013/1082 matter and whether those objections were made for the same reasons, which they confirmed.

[9] Having heard the views of the parties on these matters, I consider it appropriate to make the same determination about the questions, for the same reasons in this matter as in B2013/1082, and now do so.

[10] Having found that an application has been properly made and that the Applicant has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted, I must make a protected action ballot order.

[11] As the issues to be decided were the same in both matters, the parties agreed that both matters would be decided in a similar way and for that reason an order consistent with my reasoning set out in [2013] FWC 5360 is issued at the same time as this decision. That order;

a) grants a ballot of employees as sought by the ASU and the individual applicants on the questions indicated in the application;

b) will specify that the period of written notice referred to in paragraph 414(2)(a) is extended to 7 working days in respect of the proposed industrial action set out in questions 16, 20 and 46, and that the extension in respect of question 46 will be in respect of the four categories of employee referred to in the body of this decision.

COMMISSIONER

Appearances:

Mr Shepherd for the Australian Municipal, Administrative, Clerical and Services Union

Ms Jackson and Mr Minucci for the Metropolitan Fire and Emergency Services Board (MFB).

Hearing details:

2013.

Melbourne:

August 2.

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