Media, Entertainment and Arts Alliance v Australian Centre for Contemporary Art Summary

[2023] FWC 1495

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Media, Entertainment and Arts Alliance

Australian Centre For Contemporary Art

(B2023/628)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 23 JUNE 2023

Proposed protected action ballot of employees of Australian Centre for Contemporary Art

This is an application by the Media, Entertainment and Arts Alliance (MEAA) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the Respondent, Australian Centre for Contemporary Art (ACCA).

On 22 June 2023, the Commission was advised that the Respondent did not object to the Application.

The Commission held a hearing on Friday 23 June 2023 to seek some clarification about the ballot questions and the form of the proposed Order more generally. The final form of Order adopted by the Commission has the support of both parties.

On the basis of this hearing and the material now before me, including the declaration of Mr Nicholas Anderson, Visitor Experience Team Member for the ACCA and a delegate of the MEAA, setting out the steps taken by the MEAA in bargaining with ACCA 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 all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Australian Electoral Commission. For the purposes of s.443(3)(c) and s.448A(2) of the Act, a ballot period of 30 days from the date of the Order has been established by the Commission.

An order has been separately issued in PR763478.

This matter will be assigned to another Member of the Commission to conduct the s.448A conference and this Member will issue the Order requiring attendance at the conference. This will involve all bargaining representatives for the proposed enterprise agreement. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Media, Entertainment and Arts Alliance (MEAA) filed an application under Section 437 of the Fair Work Act 2009 for a protected action ballot order on behalf of certain employees of the Australian Centre for Contemporary Art (ACCA). The application sought to allow a ballot to be held to determine if employees would support taking protected industrial action. The Australian Centre for Contemporary Art did not object to the application. The matter was heard by the Fair Work Commission in Adelaide on 23 June 2023, where clarification was sought regarding the ballot questions and the form of the proposed order. The final form of the order was supported by both parties. The Commission found that all requirements under Section 443(1) of the Act had been met, including the notification time for the proposed agreement and the MEAA's genuine attempt to reach an agreement with ACCA.

The legal issues before the Commission included whether the MEAA had complied with the provisions of the Fair Work Act 2009 in making the application for the protected action ballot order and whether the ACCA had any objections to the ballot. The Commission also had to consider whether the proposed ballot questions were appropriate and whether the ballot period should be set at 30 days, as requested by the MEAA. The Commission found that the MEAA had met all the requirements of the Act and that the ACCA did not object to the application. The ballot questions were deemed appropriate, and the requested ballot period was granted.

The Commission granted the MEAA's application for a protected action ballot order, with a ballot period of 30 days from the date of the order. The ballot will be conducted by the Australian Electoral Commission. A separate order has been issued in PR763478. The matter will be assigned to another Member of the Commission to conduct the Section 448A conference, and directions will likely be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations. The final order requires all bargaining representatives for the proposed enterprise agreement to attend the conference and be prepared to negotiate in good faith.

Media, Entertainment and Arts Alliance v Australian Centre for Contemporary Art

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established