Media, Entertainment and Arts Alliance v Australian Broadcasting Corporation T/A ABC

[2023] FWC 326

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Media, Entertainment and Arts Alliance
v

Australian Broadcasting Corporation T/A ABC

(B2023/80)

VICE PRESIDENT CATANZARITI

SYDNEY, 7 FEBRUARY 2023

Proposed protected action ballot of employees of the Australian Broadcasting Corporation

This is an application by the Media, Entertainment and Arts Alliance (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Australian Broadcasting Corporation T/A ABC (Respondent).

On 7 February 2023, the Fair Work Commission was advised that the Respondent neither opposed nor consented 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 statutory declaration of Casandra Carmel Derrick of the Applicant declared on 2 February 2023, 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 PR750293.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Media, Entertainment and Arts Alliance (the Applicant) sought a protected action ballot order under section 437 of the Fair Work Act 2009 from the Fair Work Commission. The application was against the Australian Broadcasting Corporation T/A ABC (the Respondent). The dispute centred on the proposed industrial action by certain employees of the Respondent, which the Applicant sought to ballot. The Respondent neither opposed nor consented to the application, leading the Commission to proceed with the matter based on the provided documents without a formal hearing.

The primary legal issue for the Commission to decide was whether the Applicant had met the statutory requirements for a protected action ballot, specifically under section 437 of the Fair Work Act 2009. This involved verifying if the Applicant had genuinely attempted to negotiate with the Respondent and if the statutory notification period for the proposed agreement had been met. The Commission also had to consider whether the conditions outlined in section 443(1) of the Act were satisfied.

In reaching its decision, the Vice President relied on the statutory declaration of Casandra Carmel Derrick of the Applicant, dated 2 February 2023, which detailed the bargaining process and the Applicant's efforts to reach an agreement with the Respondent. The Vice President was satisfied that the Applicant had indeed been genuinely trying to negotiate and that the notification period for the proposed agreement had been adhered to. Consequently, the Vice President determined that the requirements for a protected action ballot were met.

The Fair Work Commission issued an Order in PR750293, allowing the Applicant to proceed with the ballot for the proposed protected action. The decision underscores the importance of demonstrating genuine bargaining efforts and compliance with statutory notification periods in such industrial disputes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established