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

[2022] FWC 2076

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v

Stonnington City Council

(B2022/1173)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 4 AUGUST 2022

Proposed protected action ballot of employees of Stonnington 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 Stonnington City Council (the Respondent).

On 4 August 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 Ms Tash Wark of the Applicant, setting out the steps taken by the Applicant in bargaining and the assertion 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 also sought that a person other than the Australian Electoral Commission be the ballot agent for the protected action ballot. The Respondent did not oppose this course. The person proposed in the application as the protected action ballot agent is Mr Stephen Donaldson (Business Owner of TrueVote Pty Ltd). I am satisfied that Mr Donaldson is a fit and proper person to conduct the ballot. I am also satisfied that he is capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. Mr Donaldson 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 Mr Stephen Donaldson as the protected action ballot agent.

An order has been separately issued in PR744524.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for an order to conduct a protected action ballot of certain employees of Stonnington City Council. The application was made due to the union's assertion that it had been genuinely trying to reach an agreement with the council but had been unable to do so. The council did not object to the application, and the matter was determined by the Deputy President on the papers without a hearing.

The primary legal issue for the Deputy President to decide was whether the union had met the requirements under section 443(1) of the Fair Work Act for conducting a protected action ballot. Specifically, the court had to determine if the union had satisfied the notification time in relation to the proposed agreement and if it had genuinely tried to reach an agreement with the council. Additionally, the court needed to assess the suitability of the proposed ballot agent, Mr Stephen Donaldson, to ensure he was a fit and proper person to conduct the ballot, capable of ensuring the secrecy and security of the votes, and able to conduct the ballot expeditiously.

The Deputy President found that the union had met the requirements under section 443(1) of the Fair Work Act, as evidenced by the declaration of Ms Tash Wark, who outlined the steps taken by the union in bargaining and their efforts to reach an agreement with the council. The court also found that Mr Donaldson was a fit and proper person to conduct the ballot, as he was bound to comply with the Privacy Act 1998 with respect to the handling of information relating to the ballot. The Deputy President appointed Mr Donaldson as the protected action ballot agent, and an order was issued separately in PR744524.

The court's decision was to grant the union's application for a protected action ballot and to appoint Mr Stephen Donaldson as the ballot agent. The Deputy President was satisfied that the union had met the legal requirements for conducting the ballot and that Mr Donaldson was capable of ensuring the secrecy and security of the votes and conducting the ballot expeditiously. The court's decision was based on the material presented, including the declaration of Ms Tash Wark and the proposed ballot agent's agreement to comply with the Privacy Act 1998.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established