Municipal and Utilities Workers Union Inc v City of Whittlesea

[2023] FWC 2114

[2023] FWC 2114

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Municipal and Utilities Workers Union Inc

v

City of Whittlesea

(B2023/867)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 24 AUGUST 2023

Proposed protected action ballot of employees of City of Whittlesea.

1. This is an application by the Municipal and Utilities Workers Union Inc (MUWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of City of Whittlesea (City of Whittlesea or Employer).

1. On 22 August 2023, the Commission was advised, in effect, that City of Whittlesea did not object to the Application.

1. In later correspondence, the Employer raised concerns that one of the proposed ballot questions[1] was “not specific and does not allow employees to understand what they are voting for, nor Council to understand what action is being proposed with respect to these work sites.”[2]  Despite providing an opportunity for the parties to engage on the issue, the matter remained unresolved.

1. In the circumstances, a short hearing was conducted today to determine this aspect. During the hearing the parties agreed an alternative ballot question and I am satisfied that this formulation meets the requirements of s.437(3)(b) of the Act, having regard to the Full Bench decision in NTEU v Curtin University.[3]

1. On the basis of the material before me, including the declaration of Ms Jennifer Marriott on behalf of the MUWU, setting out the steps taken by the MUWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with the City of Whittlesea, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443 of the Act have been met, including those not in contest and not expressly dealt with in this decision. Accordingly, and given that s.443(2) does not apply, I was obliged to issue the Order.

1. The ballot is to be conducted by the Australian Electoral Commission. For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 6 October 2023.[4] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. An order has been separately issued in PR765489.

1. Noting that another s.437 application[5] involving the same proposed enterprise agreement has already been granted and related proceedings are underway, this matter will be assigned to the relevant Member of the Commission to conduct the s.448A compulsory conciliation conference dealing with both matters. That Member will issue, to the extent that there are additional bargaining representatives involved, an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is also likely that Directions have been, or will be, issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] Question 1 of the proposed order.

[2] Email late on 22 August 2023.

[3] [2022] FWCFB 204.

[4] This is, in effect, 30 working days from the making of the Order, which is the period required by the Australian Electoral Commission to conduct a ballot.

[5] B2023/853 – An Application by the Australian Municipal, Administrative, Clerical and Services Union (ASU).

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