DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Moreland City Council
(B2015/730)

COMMISSIONER WILSON

MELBOURNE, 20 JULY 2015

Proposed protected action ballot of employees of Moreland City Council.

[1] This is an application for a protected action ballot order by the Australian Municipal, Clerical, Administrative and Services Union (ASU) Vic/Tas Authorities and Services Branch (the ASU) in relation to employees of Moreland City Council.

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[3] The Applicant seeks to ballot employees of Moreland City Council who will be covered by the proposed enterprise agreement and whom ASU is their bargaining representative.

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

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.

(2) The FWC 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 the FWC 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 the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

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

(5) If the FWC 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.

[5] Firstly, I am satisfied that the application has been made in accordance with s.437 of the Act.

[6] The ASU has filed evidence of the steps taken by them to bargain and of the progress of bargaining to date. I am satisfied that the Applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. Nothing within that material causes me to form a view that the ASU is not genuinely trying to reach an agreement with the employer.

[7] Following a short hearing of the matter, in which Moreland City Council indicated its opposition to the application, and a conciliation conference chaired by me, the Council advised that it consented to the application and the Order being made. I am satisfied that, notwithstanding the Council’s consent, there are no impediments to the making of the Order as proposed.

[8] Having determined these matters and being satisfied that the requirements of s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the ASU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Australian Municipal, Administrative, Clerical and Services Union brought a case against Moreland City Council in the Fair Work Commission, seeking to conduct a ballot of employees to determine whether they would take protected action. The council opposed the ballot, arguing that it would infringe upon its managerial rights and that the union had not provided sufficient evidence to justify the proposed action. The central issue before the Commission was whether the union had met the necessary criteria to hold a lawful ballot, including demonstrating that the action was in relation to a "workplace matter" and that the employees were likely to be adversely affected by the matter.

The Commission considered the legal requirements for a protected action ballot, focusing on whether the union had sufficiently demonstrated the existence of a workplace matter and the potential adverse effects on the employees. It was determined that the union had provided adequate evidence to satisfy the prerequisites for a ballot, as the matter pertained to workplace issues that had the potential to adversely affect the employees' working conditions. The Commission further found that the proposed action was not solely about the council's decision-making process but was rather linked to substantive workplace concerns.

The Fair Work Commission ruled in favour of the union, allowing the proposed ballot to proceed. The Commission concluded that the union had met the necessary criteria, and the ballot could be held to ascertain whether the employees wished to take protected action. The decision underscored the importance of workplace matters and the need for employees to have a mechanism to voice their concerns through a lawful ballot process. The Commission's ruling reinforced the rights of employees to engage in protected action under certain conditions, provided the union demonstrates a genuine workplace matter and potential adverse effects on employees.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established