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

[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

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).

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.

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.

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.

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.

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

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.

An order has been separately issued in PR761377.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Electoral Commission (AEC) applied to the Fair Work Commission (FWC) for a variation of a protected action ballot order in a matter involving the Australian Nursing and Midwifery Federation and Maribyrnong City Council. The AEC sought to extend the ballot closing date from 30 business days to a later date to allow for the inclusion of eligible voters who were not included on the initial voter roll. The Australian Nursing and Midwifery Federation opposed the extension, arguing that it should not exceed 14 days, while Maribyrnong City Council did not object to the application.

The FWC considered the application and the arguments of both parties. The Deputy President determined that it was appropriate to vary the order in light of the circumstances. The AEC had not received a complete list of staff from Maribyrnong City Council, resulting in eligible voters not being on the final roll. The FWC also noted that the AEC and the Australian Nursing and Midwifery Federation had reached an agreement on the extension period, which was not more than 14 days from the date of the decision.

The FWC varied the protected action ballot order, setting the new closing date for voting no later than 14 working days from the date of the order. The decision was made based on the papers submitted, without the need for a hearing. A separate order was also issued in PR761377.

In summary, the FWC granted the AEC's application for a variation of the protected action ballot order, extending the voting closing date by 14 working days from the date of the decision. This decision was made considering the incomplete voter roll and the agreement between the AEC and the Australian Nursing and Midwifery Federation on the extension period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established