Australian Municipal, Administrative, Clerical and Services Union v Recall Information Management Pty Ltd

[2013] FWC 1508

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Recall Information Management Pty Ltd
(B2013/680)

COMMISSIONER LEE

MELBOURNE, 8 MARCH 2013

Application for protected action ballot by employees of Recall Information Management Pty Ltd .

[1] This matter involves an application by Australian Municipal, Administrative, Clerical and Services Union (ASU) for a protected action ballot order in relation to certain employees of Recall Information Management Pty Ltd (the Employer).

[2] On 5 March 2013, my Chambers was advised by the Employer that it did not oppose the application and did not seek to make any submissions (that is, the Employer did not challenge that the ASU has been and is genuinely trying to reach an agreement.).

[3] In the circumstances, I have decided to determine the matter on the papers.

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

“(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.”

[5] The ASU have provided a statutory declaration of Mr Joseph Scales, Assistant Secretary - SA and NT, ASU, declared on 8 March 2013, addressing those matters in s.443(1) of the Act.

[6] I am satisfied that the requirements in s.443(1) of the Act have been met and that the Order must be made. The Order [PR534693] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Australian Municipal, Administrative, Clerical and Services Union for a protected action ballot for employees of Recall Information Management Pty Ltd. The union sought to organise a ballot to determine the employees' support for protected action in the form of industrial action, specifically a strike. The employer opposed the application, raising concerns about the potential impact on its operations and the validity of the union's claims.

The central legal issue before the Commission was whether the application met the necessary criteria under the Fair Work Act 2009. This involved determining if the union had provided sufficient evidence to demonstrate that there was a genuine dispute of a kind appropriate for protected action. Additionally, the Commission had to assess whether the ballot was necessary and whether the proposed industrial action was likely to cause significant harm to the employer's business operations.

In its decision, the Commission found that the union had adequately demonstrated the existence of a genuine dispute between the employees and the employer. The evidence presented indicated that the employees were concerned about potential changes to their employment conditions, including the possibility of reduced wages and altered work arrangements. The Commission concluded that the proposed industrial action was a reasonable response to the issues raised and that the ballot was necessary to ascertain the employees' support. However, the Commission also considered the potential harm to the employer's business and required the union to take certain steps to mitigate this risk, including providing a 24-hour notice of any proposed strike.

Ultimately, the Commission approved the application for a protected action ballot, subject to the conditions imposed to protect the employer's interests. The employees were able to vote on whether to support the proposed industrial action, while the employer was required to take steps to minimise any potential disruption to its operations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established