Australian Municipal, Administrative, Clerical and Services Union v Moira Shire Council Summary

[2023] FWC 3113

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v

Moira Shire Council

(B2023/1295)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 27 NOVEMBER 2023

Proposed protected action ballot of employees of Moira Shire Council

This is an application by the Australian Municipal, Administrative, Clerical and Services Union (ASU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Moira Shire Council (Moira Shire Council or Employers).

On 27 November 2023, the Commission was advised that Moira Shire Council, in effect, did not object to the Application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Mr Shane Lumsden, ASU Organiser, setting out the steps taken by the ASU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Moira Shire Council, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the TrueVote Pty Ltd (TrueVote). TrueVote has been approved as an eligible protected action ballot agent under s 468A of the Act[1] and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, and following consultation with Parties, the Commission has determined that the date by which voting is to close is 12 December 2023.[2] This also established the ballot period for the purpose of s.448A(2) of the Act.

An order has been separately issued in PR768699.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] TrueVote Pty Ltd [2023] FWC 1446.

[2] This date was nominated by the Applicant and represents eleven (11) working days from the making of the ballot order.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union (ASU) filed an application under section 437 of the Fair Work Act 2009, seeking a protected action ballot order in relation to specific employees of Moira Shire Council. The application was made to allow the union to conduct a ballot for protected industrial action in relation to the employees. The application was made on the basis that the union had been genuinely attempting to reach an agreement with the council and had followed the necessary notification procedures. The council did not object to the application, and the matter was determined by the Fair Work Commission on the papers without the need for a hearing.

The legal issues before the Commission included whether the union had satisfied the requirements of section 443(1) of the Act by providing the necessary notification time and demonstrating a genuine attempt to reach an agreement. Another issue was whether the proposed ballot agent, TrueVote Pty Ltd, was approved under section 468A of the Act and thus authorised to conduct the ballot. The Commission also needed to determine an appropriate closing date for the ballot voting, ensuring it complied with section 443(3)(c) of the Act.

The Commission found that the union had met all the requirements for a protected action ballot order. The Deputy President was satisfied with the union's declaration and the steps taken in bargaining with the council. The Deputy President also confirmed that TrueVote Pty Ltd was approved as a ballot agent under the Act. The Commission set the closing date for voting as 12 December 2023, which was eleven working days from the date of the ballot order. This decision was made after consultation with the parties involved. The matter will be assigned to another member of the Commission to conduct a compulsory conciliation conference to facilitate meaningful negotiations between the parties.

The orders made by the Commission included the authorisation of the ballot by TrueVote Pty Ltd, the setting of the closing date for voting, and the scheduling of a compulsory conciliation conference. The Commission also issued an order requiring all bargaining representatives to attend the conference and be prepared for meaningful negotiations.

Australian Municipal, Administrative, Clerical and Services Union v Moira Shire Council

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established