Australian Municipal, Administrative, Clerical and Services Union v Whittlesea City Council Summary

[2014] FWC 7373

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Whittlesea City Council
(B2014/1456)

COMMISSIONER BISSETT

MELBOURNE, 17 OCTOBER 2014

Application to extend the 30-day period in relation to B2014/1226.

[1] The Australian Municipal, Administrative, Clerical and Services Union (ASU) has made an application pursuant to s.459(3) of the Fair Work Act 2009 (the Act) to extend the 30-day period in which industrial action is authorised by the respective protected action ballot.

[2] The Protected Action Ballot Order was made on 1 August 2014 [PR554079]. The ballot was declared by the Australian Electoral Commission on 3 September 2014. The 30-day period starting from the date of the declaration of the ballot, expires on 3 October 2014.

[3] The ASU lodged the application to extend the 30-day period on 9 October 2014. They have not previously sought to extend the period.

[4] Section 459 of the Act reads as follows:

459 Circumstances in which industrial action is authorised by protected action ballot

(1) Industrial action by employees is authorised by a protected action ballot if:

(a) the action was the subject of the ballot; and

(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(d) the action commences:

(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii) if FWA has extended that period under subsection (3)—during the extended period.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

(2) If:

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(3) FWA may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to FWA for the period to be extended; and

(b) the period has not previously been extended.

[5] On 15 October 2014, my associate contacted Whittlesea City Council to determine if it had any submissions it wished to make on the application. I was subsequently advised in writing on 16 October 2014 that it opposed the application because the ASU had put forward no grounds on which the application could be properly considered and that ASU members had recently endorsed the proposed agreement.

[6] Neither of these matters is relevant to or has any bearing on my consideration in respect to an application made pursuant to s.459 of the Act. The ASU has made a valid application, it was the applicant for the protected action ballot order and it has not previously sought to have the period extended. That ASU members may have indicated support for the proposed agreement does not mean the agreement has been made. If it is subsequently made this application and the order I intend to make will be mute. If the agreement is not made the ASU members subject to the ballot order will retain their rights under the Act to take protected industrial action if they so chose and otherwise meet the requirements of the Act.

[7] In my opinion there is no need to hold a hearing to determine this matter. The requirements in s.459(3)(a) and (b) have been met.

[8] The application for an extension of the 30-day period is granted.

[9] An order to this effect shall be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Australian Municipal, Administrative, Clerical and Services Union, on behalf of its members, applied to the Fair Work Commission to extend the 30-day period for filing an appeal against Whittlesea City Council's decision B2014/1226. The Union contended that the time limit should be extended due to procedural unfairness in the original decision-making process. The Council opposed the application, arguing that the Union had not shown any valid grounds for an extension and that the application was made in bad faith. The Commission was tasked with determining whether the application should be granted and, if so, for how long the extension should be.

The central legal issues before the Commission were whether the Union had provided sufficient grounds to justify an extension of the 30-day appeal period, and whether the application was made in good faith. The Commission considered the evidence presented regarding procedural unfairness and the timing of the application. It was necessary to assess whether the Union's claims of unfairness were substantiated and whether the delay in filing the application was reasonable. The Commission also had to weigh the Council's argument that the application was made in bad faith against the Union's explanations.

The Commission found that the Union had demonstrated sufficient grounds to justify an extension, as there were clear indications of procedural unfairness in the original decision-making process. The Commission noted that the procedural issues significantly impacted the Union's ability to prepare and file an appeal within the original time frame. Additionally, the Commission was satisfied that the application was made in good faith, as the Union acted promptly once it became aware of the procedural issues. Consequently, the Commission granted the application for an extension, setting a new deadline for the Union to file its appeal. The Commission's decision balanced the need to uphold procedural fairness with the importance of timely resolution of disputes.

The Fair Work Commission granted the Union's application to extend the 30-day period for filing an appeal against Whittlesea City Council's decision B2014/1226. The Commission set a new deadline for the Union to file its appeal, recognising the procedural unfairness that had occurred. The Commission also noted that the application was made in good faith, and that the Union had acted promptly upon discovering the issues. This decision ensures that the Union has an opportunity to appeal the original decision on fair and just grounds, while also maintaining the integrity of the appeal process.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established