Australian Electoral Commission

[2022] FWC 558

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.447—Protected action

Australian Electoral Commission

(B2022/197; B2022/198)

COMMISSIONER MCKINNON

SYDNEY, 14 MARCH 2022

Application for a variation of Protected Action Ballot Orders in B2022/62 and B2022/63.

On 11 February 2022, I determined applications made by The Australian Workers’ Union (B2022/62; PR738249) and the United Workers’ Union (B2022/63; PR738256) by making protected action ballot orders under the Fair Work Act 2009 (the Act).

On 11 March 2022, the Australian Electoral Commission (AEC) applied under s.447 of the Act to vary the protected action ballot orders. The AEC seeks to vary the date by which voting closes to accommodate a further period, so that voters whose postal vote packs may have been affected by recent flooding in New South Wales can apply for a replacement vote pack; and so that ballots which have already been posted by voters but have not yet been delivered to the AEC can be delivered before voting closes.

The parties to the application either support or do not oppose the variation application. In the circumstances, I consider it appropriate to vary the protected action ballot orders made on 11 February 2022 so that all relevant employees have a reasonable opportunity to participate in the ballot. The orders will be varied so that voting closes no later than 6 April 2022.

An order (PR739277) giving effect to this decision will be issued separately.

COMMISSIONER

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CaseChat Overview and Summary

The Australian Electoral Commission applied to the Fair Work Commission under section 447 of the Fair Work Act 2009 for a variation of protected action ballot orders previously made by the Commission in relation to industrial action by The Australian Workers' Union and the United Workers' Union. The AEC sought the variation to accommodate the impact of recent flooding in New South Wales, which had affected postal vote packs and the delivery of ballots already posted by voters. Both unions either supported or did not oppose the application for variation.

The primary legal issue before the Commission was whether the variation of the ballot orders was necessary to ensure that all relevant employees had a reasonable opportunity to participate in the ballot, given the circumstances of the flooding and its impact on the ability of some employees to vote. The Commission considered the application in light of the potential impact on the fairness and effectiveness of the ballot process, and the need to balance the rights of the parties involved.

The Commission found that varying the ballot orders was appropriate to allow all relevant employees a reasonable opportunity to participate in the ballot, particularly those whose postal vote packs may have been affected by the flooding or whose ballots had already been posted but not yet delivered. The Commission determined that the orders should be varied so that voting closes no later than 6 April 2022, providing sufficient time for affected employees to receive replacement vote packs and for ballots already posted to be delivered before voting closes.

The Commission made an order varying the protected action ballot orders to extend the closing date for voting to 6 April 2022. An order (PR739277) giving effect to this decision will be issued separately.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established