Australian Municipal, Administrative, Clerical and Services Union v Whitehorse Manningham Regional Library Corporation T/A Whitehorse Manningham Libraries

[2023] FWC 291

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v

Whitehorse Manningham Regional Library Corporation T/A Whitehorse Manningham Libraries

(B2023/79)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 3 FEBRUARY 2023

Proposed protected action ballot of employees of Whitehorse Manningham Regional Library Corporation T/A Whitehorse Manningham Libraries.

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 Whitehorse Manningham Regional Library Corporation T/A Whitehorse Manningham Libraries (Respondent).

On 3 February 2023, 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 Elspeth Cridland of the Applicant setting out the steps taken by it in bargaining with the Respondent and 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.

An order has been separately issued in PR750195.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the Australian Municipal, Administrative, Clerical and Services Union (the Applicant) for a protected action ballot order in relation to certain employees of the Whitehorse Manningham Regional Library Corporation T/A Whitehorse Manningham Libraries (the Respondent). The application was made under section 437 of the Fair Work Act 2009 (the Act). The Respondent did not object to the application and the matter was decided on the papers without a hearing. The Applicant sought the order to ballot its members on proposed protected action due to failed bargaining with the Respondent over the terms and conditions of employment for certain employees.

The primary legal issue before the Commission was whether the Applicant had met the requirements of section 437 of the Act in seeking the protected action ballot order. Specifically, the Commission needed to determine if there was a notification time in relation to the proposed agreement and if the requirements in section 443(1) of the Act had been met. The Applicant had to demonstrate that it had genuinely tried to reach an agreement with the Respondent, which was a necessary condition for the order to be granted.

The Commission found that the Applicant had provided sufficient evidence to satisfy the requirements of section 437 of the Act. The declaration of Elspeth Cridland of the Applicant set out the steps taken by the union in bargaining with the Respondent and demonstrated that the Applicant had been, and was, genuinely trying to reach agreement with the Respondent. The Commission was also satisfied that there was a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the Act had been met. As a result, the Deputy President granted the application and issued an order in PR750195.

The Fair Work Commission granted the application for a protected action ballot order in relation to certain employees of the Whitehorse Manningham Regional Library Corporation T/A Whitehorse Manningham Libraries. The order was issued in PR750195, and the union was permitted to proceed with the ballot of its members on the proposed protected action. The decision underscores the importance of genuine bargaining efforts by unions and the role of the Commission in facilitating fair work practices.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established