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

[2010] FWA 9164

[2010] FWA 9164

FAIR WORK AUSTRALIA

DECISION

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

Australian Municipal, Administrative, Clerical and Services Union
v
Monash City Council
(B2010/3653)

COMMISSIONER ROE MELBOURNE, 29 NOVEMBER 2010

Proposed protected action ballot by employees of Monash City Council.

[1] This is an application for a protected action ballot by members of the Australian, Municipal, Administrative, Clerical and Services Union (ASU) employed by the Monash City Council (MCC). The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The applicant seeks to ballot employees of the MCC who would be covered by the proposed enterprise agreement and who are members of the ASU.

[3] In considering this matter I must apply s.443 of the Act which provides:

443 When FWA must make a protected action ballot order

(1) FWA 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) FWA 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) FWA 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;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If FWA 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 FWA decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If FWA 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.

[4] To begin, I am satisfied that the Application has been made in accordance with s.437 of the Act. I agreed to amend the Application so that the preamble to the proposed ballot questions and the ballot questions in the Application reflected those in the amended draft order provided to the Tribunal and the MCC on 29 November 2010. 1 I am satisfied that the Application was not made earlier than 30 days prior to the nominal expiry date of the current agreement, Monash City Council Enterprise Agreement No. 5 2007, as required by Section 438 of the Act. MCC confirmed that they had received the Application as required by Section 440 of the Act.

[5] The next matter to which attention must be given is whether or not the applicant has been, and is, genuinely trying to reach an agreement with the employer on behalf of the employees who are to be balloted. I am satisfied, after hearing submissions from Ms Court, on behalf of the ASU, that this is the case. MCC did not challenge these submissions nor the statutory declaration to that effect provided by Mr Rizzo of the ASU and attached to the Application.

[6] MCC do not oppose the orders as amended being made. The orders will be amended to include “Yes/No” after to each question to clarify that employees are being asked to vote separately in respect to each of the proposed forms of industrial action. I am satisfied that the questions adequately specify the nature of the proposed industrial action and meet the requirements of Section 443(3)(d). The scope of the Agreement sought by the ASU is all employees of MCC except for the CEO and the draft order therefore adequately describes the group of employees to be balloted as required by Section 443(3)(b). The AEC will be the ballot agent.

[7] Having decided that s.443(1) (a) and (b) have been complied with, I must make a protected action ballot order, as sought by the ASU.

COMMISSIONER

Appearances:

L. Court for the Australian Municipal, Administrative, Clerical and Services Union.

G. Katz, Meerkin & Apel Lawyers for Monash City Council together with L Harder for Monash City Council.

Hearing details:

2010

Melbourne

November 29

 1   Exhibit ASU-1

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