Australian Municipal, Administrative, Clerical and Services Union v YSAS Pty Ltd T/A Youth Support and Advocacy Service

[2022] FWC 2492

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v

YSAS Pty Ltd T/A Youth Support and Advocacy Service

(B2022/1395)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 16 SEPTEMBER 2022

Proposed protected action ballot of employees of YSAS Pty Ltd T/A Youth Support and Advocacy Service.

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 YSAS Pty Ltd T/A Youth Support and Advocacy Service (Respondent).

On 16 September 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 Mr Timothy Michael Sullivan 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 PR745950.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union (Applicant) lodged an application under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order concerning certain employees of YSAS Pty Ltd T/A Youth Support and Advocacy Service (Respondent). The dispute arose from the union's claim that it had been genuinely trying to reach an agreement with the Respondent through bargaining, but had been unable to do so. The union sought to proceed with a protected action ballot to allow its members to take industrial action.

The legal issues before the Deputy President were whether the union had met the requirements set out in s.443(1) of the Act and whether there was a notification time in relation to the proposed agreement. The union had to demonstrate that it had been genuinely attempting to reach an agreement with the Respondent and that it had fulfilled the necessary notification requirements. The Deputy President was tasked with determining whether these conditions were met based on the material provided.

The Deputy President examined the declaration of Mr Timothy Michael Sullivan of the Applicant, which outlined the steps taken by the union in bargaining with the Respondent. The President was satisfied that the union had genuinely tried to reach an agreement and that the requirements of s.443(1) of the Act had been met. Additionally, the President determined that there was a notification time in relation to the proposed agreement. As the Respondent did not object to the application, the Deputy President decided to determine the matter on the papers without holding a hearing.

Consequently, the Deputy President issued an order in PR745950, granting the union's application for a protected action ballot order. The union is now permitted to proceed with the ballot, enabling its members to take industrial action if they deem it necessary. The decision ensures that the union's right to organise and negotiate with employers is upheld, while also taking into account the Respondent's right to engage in fair and reasonable discussions with the union.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established