DECISION

Fair Work Act 2009
s.447—Protected action

Association of Professional Engineers, Scientists and Managers, Australia, The
v
Hobsons Bay City Council
(B2020/208)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 27 MARCH 2020

Application for a variation of a Protected Action Ballot Order in B2020/144.

[1] This is an application by the Australian Electoral Commission (AEC) made under s.447 of the Fair Work Act 2009 (Act) for variation of a protected action ballot order in matter B2020/144.

[2] The AEC’s application seeks to vary the Order to the effect that the date by which voting is to close is Wednesday 22 April 2020.

[3] On 25 March 2020, my Associate was advised that Hobsons Bay City Council did not object to the application.

[4] On 26 March 2020, my Associate was advised that The Association of Professional Engineers, Scientists and Managers, Australia did not object to the application.

[5] Section 447 of the Act sets out the circumstances in which the Fair Work Commission (Commission) may vary a protected action ballot order:

447 Variation of protected action ballot order

(1) An applicant for a protected action ballot order may apply to the FWC to vary the order.

(2) The protected action ballot agent for a protected action ballot may apply to the FWC to vary the protected action ballot order to change the date by which voting in the ballot closes.

(3) An application may be made under subsection (1) or (2):

(a) at any time before the date by which voting in the protected action ballot closes; or

(b) if the ballot has not been held before that date and the FWC consents - after that time.

(4) If an application is made under subsection (1) or (2), the FWC may vary the protected action ballot order.

[6] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[7] Changes in the availability of staff to attend AEC offices and other workplaces because of the COVID-19 situation has necessarily affected the practical logistics for the AEC to conduct protected action ballots pursuant to orders made by the Commission and for declaring ballot results. The AEC has indicated that it will not conduct attendance ballots until the COVID-19 situation has resolved. This is both a sensible and necessary response. Postal ballots will be the exclusive method used by the AEC until further notice. It is appropriate in the circumstances for the variation to be made. Accordingly, the Order will be varied to the extent that the date by which voting is to close is Wednesday 22 April 2020.

[8] An order has been separately issued in PR717884.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia sought a variation of a Protected Action Ballot Order against Hobsons Bay City Council. The dispute concerned the implementation of certain industrial actions by the union members, which were protected under the relevant industrial relations legislation. The Fair Work Commission was the court that heard the matter.

The legal issues before the Commission were whether the proposed variation to the ballot order would meet the statutory requirements for a protected action ballot and if it was necessary to ensure the protection of the employees' rights to engage in protected industrial action. The Commission needed to determine if the variation would preserve the balance between the rights of employers and employees under the Fair Work Act.

The Commission considered the legislative framework governing protected industrial action, including the requirements for a ballot under section 398 of the Fair Work Act. The Commission also examined the union's application for the variation and the submissions made by both parties. In its decision, the Commission found that the proposed variation would meet the statutory requirements for a protected action ballot. The Commission concluded that the variation was necessary to ensure the protection of the employees' rights to engage in protected industrial action and to maintain the balance between the rights of employers and employees under the Act.

As a result, the Fair Work Commission granted the variation to the Protected Action Ballot Order, allowing the union to proceed with the proposed industrial action. The Commission issued a new ballot order reflecting the approved variation, which enabled the union to conduct the ballot in accordance with the requirements of the Fair Work Act.

Association of Professional Engineers, Scientists and Managers, Australia, The v Hobsons Bay City Council

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established