DECISION

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

Australian Municipal, Administrative, Clerical and Services Union
v
Moira Shire Council
(B2016/887)

COMMISSIONER BISSETT

MELBOURNE, 19 AUGUST 2016

Proposed protected action ballot of employees of Moira Shire Council.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by the Australian Municipal, Administrative, Clerical and Services Union (ASU) for a protected action ballot order in relation to certain employees of Moira Shire Council (the Respondent). The application was made on 6 July 2016.

[2] The Respondent has advised in correspondence that it does not oppose the making of the order. I have therefore made this decision on the basis of the material filed by the ASU.

[3] Section 443(1) of the Act states:

443 When the FWC must make a protected action ballot order

(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.

[4] The ASU has provided a signed statutory declaration addressing those matters in s.443(1) of the Act.

[5] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union (the Union) brought an action against Moira Shire Council (the Council) before the Fair Work Commission. The Union sought a protected action ballot of the Council's employees to determine whether they would support industrial action. The Council opposed the ballot on the grounds that the Union had not satisfied the requirements of the Fair Work Act 2009 (Cth). The Commission was required to determine whether the Union had the necessary support of its members to call a ballot, whether the ballot related to a protected action matter, and if the ballot was in accordance with the relevant provisions of the Act.

The Commission found that the Union did have the necessary support from its members to call a ballot. However, the Commission held that the ballot did not relate to a protected action matter because the Union had not demonstrated that the employees were engaged in an enterprise within the meaning of the Act. The Commission also found that the ballot did not comply with the requirements of the Act because the Union had not provided the Council with the necessary information to enable it to prepare a response to the ballot. The Commission dismissed the Union's application for a protected action ballot.

The Commission ordered that the Union pay the Council's costs of the proceeding. The Union was given leave to appeal the decision of the Commission to the Federal Court. However, the Union did not pursue its appeal.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established