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

[2022] FWC 500

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v

Moreland City Council

(B2022/158)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 7 MARCH 2022

Proposed protected action ballot of employees of Moreland City Council.

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

On 7 March 2022, my Associate was advised that the Respondent 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 Luke Cherry of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

The Applicant sought that a person other than the Australian Electoral Commission be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is TrueVote Pty Ltd (TrueVote). I am satisfied that TrueVote is a fit and proper person to conduct the ballot. I am also satisfied that TrueVote is capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. TrueVote has agreed to be the protected action ballot agent and is bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

Therefore I appoint TrueVote as the protected action ballot agent.

An order has been separately issued in PR739080.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Australian Municipal, Administrative, Clerical and Services Union (Applicant) applied to the Fair Work Commission (FWC) for a protected action ballot order in relation to certain employees of Moreland City Council (Respondent). The application was made under section 437 of the Fair Work Act 2009, seeking to conduct a ballot to determine whether the employees would support protected action, such as a strike or industrial action. The Respondent did not object to the application, and the matter was determined on the papers without a hearing.

The legal issue before the FWC was whether the conditions for a protected action ballot were met, including the requirement that the union had been genuinely attempting to reach an agreement with the employer. The union had provided a declaration from one of its representatives, Mr Luke Cherry, stating that the union had been, and was, genuinely trying to reach agreement with the employer. The FWC was also required to determine whether the proposed ballot agent, TrueVote Pty Ltd, was a fit and proper person to conduct the ballot and capable of ensuring the secrecy and security of the votes.

The FWC found that the union had met the requirements for a protected action ballot, including the notification time and the genuine attempt to reach agreement with the employer. The FWC also found that TrueVote was a fit and proper person to conduct the ballot and capable of ensuring the secrecy and security of the votes. The Respondent did not object to the appointment of TrueVote as the ballot agent, and TrueVote had agreed to be bound by the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

The FWC appointed TrueVote as the protected action ballot agent and issued a separate order in PR739080. The FWC did not make any further orders in this case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established