Australian Electoral Commission (Secret Ballots) v Australian Nursing and Midwifery Federation, Maribyrnong City Council

[2023] FWC 979

[2023] FWC 979

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.447—Protected action

Australian Electoral Commission (Secret Ballots)
v

Australian Nursing and Midwifery Federation, Maribyrnong City Council

(B2023/374)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 APRIL 2023

Application for a variation of a Protected Action Ballot Order in B2023/249

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 B2023/249 on 16 March 2023 (the Order).

1. The AEC’s application, made on 24 April 2023, seeks to vary the Order to the effect that the date by which voting is to close is 30 business days from 26 April 2023.

1. 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.

1. The background and context for the application is that the AEC did not receive from Maribyrnong City Council a full list of staff covered by the Enterprise Agreement. This meant that eligible voters were not on the final roll as at the roll close date. The AEC therefore needs to recommence the ballot with a new timetable to ensure that the missing eligible members are able to vote in this protected action ballot.

1. On 26 April 2023, my Association was advised that Maribyrnong City Council did not object to the application, whilst the Australian Nursing and Midwifery Federation requested that the ballot closing date not be extended by more than 14 days from the date of this decision, with which the AEC then agreed.

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

1. Having regard to the material before me, I am satisfied 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 no later than 14 working days from the date of the Order.

1. An order has been separately issued in PR761377.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR761376>