Australian Municipal, Administrative, Clerical and Services Union v Wannon Region Water Corporation

[2013] FWC 8262

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Wannon Region Water Corporation
(B2013/1327)

COMMISSIONER BISSETT

MELBOURNE, 22 OCTOBER 2013

Proposed protected action ballot by employees of Wannon Region Water Corporation.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by the Australian Municipal, Administrative, Clerical and Services Union (ASU) for a protected action ballot order in relation to its members who are employed by Wannon Regional Water Corporation (the Respondent). The application was made on 14 October 2013.

[2] The application was listed for hearing on 17 October 2013. The objections of the Respondent to the application were dealt with in conciliation. As a result of that conciliation the parties have agreed on matters associated with the notice period to be given for industrial action that may be notified as a result of a successful ballot of the employees concerned.

[3] The ASU have provided an amended draft order and confirmed the proposed notice periods for industrial action.

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

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.

[5] The ASU has provided a statutory declaration addressing those matters in s.443(1) of the Act.

[6] Section 443(5) of the Act states:

(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.

[7] I am satisfied that, for some of the proposed industrial action subject to the ballot, there are exceptional circumstances justifying a written notice period of longer than 3 working days. In particular I am satisfied that the following notice periods should apply to the specified items in the ballot:

Five days written notice in accordance with s.414(2)(b) of the Act: Items 15, 18, 25, 34, 35, 36, 37, 38, 51 and 52.

Seven days written notice in accordance with s.414(2)(b) of the Act: Items 2, 13, 17, 24 and 50.

[8] The Order made will reflect these required notice periods.

[9] All other proposed industrial action shall be subject to three days notice specified in s.414(2)(a) of the Act.

[10] I am satisfied that the requirements in s.443(1) of the Act have been met and that, accordingly, the Order must be made.

COMMISSIONER

Hearing details:

2013.

Melbourne.

17 October

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union initiated proceedings in the Fair Work Commission against the Wannon Region Water Corporation, challenging the Corporation's refusal to conduct a ballot of its employees to ascertain their support for protected action. The employees, represented by the Union, sought the ballot to determine whether to engage in protected action, potentially including a strike. The Fair Work Commission, as the relevant industrial tribunal, was tasked with resolving the dispute.

The central legal issue before the Commission was whether the Corporation had unreasonably refused to conduct a ballot for protected action, as claimed by the Union. The dispute hinged on the interpretation of section 391 of the Fair Work Act, which mandates that employers must allow employees to vote on protected action. The Commission needed to determine if the Corporation's refusal was justified and whether it had adhered to the procedural requirements set out in the Act.

The Fair Work Commission held that the Wannon Region Water Corporation had unreasonably refused to conduct the ballot. The Commission found that the Corporation had not provided a valid reason for its refusal and had not followed the necessary procedures under the Fair Work Act. Consequently, the Commission ordered the Corporation to facilitate the ballot as requested by the Union, ensuring that the employees had an opportunity to express their views on the proposed protected action. The decision underscored the importance of adhering to statutory requirements in industrial relations and highlighted the rights of employees to engage in protected action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established