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

[2024] FWC 3081

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Municipal, Administrative, Clerical and Services Union
v

Stonnington City Council

(B2024/1440)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 7 NOVEMBER 2024

Proposed protected action ballot of employees of Stonnington City Council

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

On 6 November 2024, the Commission was advised that the Employer, in effect, 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 Tyrell Lockwood, Assistant Secretary, setting out the steps taken by the ASU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Stonnington, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Fair Vote Services Pty Ltd (FVS). FVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 21 November 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR781024.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 14 calendar days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union (ASU) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Stonnington City Council (Stonnington). The application aimed to authorise a ballot for potential industrial action, given the ongoing negotiations between the ASU and Stonnington had not resulted in an agreement. Stonnington did not object to the application, leading the Deputy President to determine the matter without a hearing. The ballot was to be conducted by Fair Vote Services Pty Ltd, an approved agent under section 468A of the Act, with voting to close on 21 November 2024.

The legal issues before the Deputy President included whether the ASU had genuinely tried to reach an agreement with Stonnington and if all requirements under section 443(1) of the Fair Work Act were met. Additionally, the court needed to decide if the specified ballot period was reasonable and if the appointment of Fair Vote Services Pty Ltd as the ballot agent was appropriate. The Deputy President reviewed the material, including a declaration from Tyrell Lockwood, Assistant Secretary of the ASU, confirming the union's efforts in bargaining and its genuine attempt to reach an agreement with Stonnington. The Deputy President also considered the implications of section 443(3)(c) of the Act in setting the closing date for voting.

The Deputy President concluded that the ASU had met all the statutory requirements for a protected action ballot order. The union's efforts in negotiating with Stonnington were deemed genuine, and the appointment of Fair Vote Services Pty Ltd as the ballot agent was appropriate. The Deputy President set the voting closure date at 21 November 2024, which aligned with the period requested in the application. An order was issued to conduct the ballot, and separate orders were made to facilitate a compulsory conciliation conference under section 448A of the Act, with a requirement for bargaining representatives to attend.

The final orders included granting the ASU's application for a protected action ballot order, authorising Fair Vote Services Pty Ltd to conduct the ballot, and setting the closing date for voting. Additionally, the orders mandated a compulsory conciliation conference and required the attendance of bargaining representatives to ensure meaningful negotiations. This decision aimed to facilitate a resolution to the ongoing dispute while allowing employees the opportunity to express their views through a ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established