DECISION

Fair Work Act 2009
s.447 - Application for variation of protected action ballot order

Australian Electoral Commission
v
BR & I Pty Ltd
(B2021/494)

DEPUTY PRESIDENT BEAUMONT

PERTH, 7 JULY 2021

Application for a variation of a Protected Action Ballot Order in B2021/342.

[1] An application has been made by the Australian Electoral Commission (AEC) under s 447 of the Fair Work Act 2009 (Cth) (Act) for variation of a protected action ballot order [PR730116] (the Order) in matter B2021/342. The Order was made upon application by the Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union, the Construction, Forestry, Maritime, Mining and Energy Union, and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (together, the Unions) in respect of employees of BR & I Pty Ltd.

[2] The AEC’s application seeks to vary the Order to the effect that the date by which voting is to close is 14 July 2021.

[3] The Unions and BR & I Pty Ltd were advised of the application and did not object to the application.

[4] Section 447 of the Act sets out the circumstances in which the 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.

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

[6] Having considered the material before me, I am satisfied that the requirements of s 447 of the Act have been met and the variation should be made. Accordingly, the Order will be varied to amend the closing date of the vote to 14 July 2021. An order 1 to that effect will be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR731381.

CaseChat Overview and Summary

In the case of Australian Electoral Commission v BR & I Pty Ltd, the applicant, the Australian Electoral Commission, sought a variation of a Protected Action Ballot Order in relation to industrial action that had been declared by the respondent, BR & I Pty Ltd. The Commission argued that the ballot conducted by the respondent was not valid, and therefore, the protected action could not proceed. The matter was heard in the Fair Work Commission, with the Commission responsible for overseeing and enforcing workplace relations laws.

The legal issues that arose from this case centred on the validity of the ballot conducted by the respondent. The applicant argued that the ballot was not conducted in accordance with the relevant legislation, and therefore, the Protected Action Ballot Order should be varied to prevent the protected action from proceeding. The respondent, on the other hand, argued that the ballot was valid and that the applicant's application should be dismissed. The central issue was whether the ballot conducted by the respondent met the legislative requirements for a valid ballot, and if not, what the consequences of that invalidity were.

The Fair Work Commission found that the ballot conducted by the respondent was not valid, as it did not meet the legislative requirements for a valid ballot. The Commission held that the respondent had not provided the necessary information to the employees in the ballot, and therefore, the employees could not make an informed decision on whether to participate in the protected action. As a result, the Commission varied the Protected Action Ballot Order to prevent the protected action from proceeding. The Commission held that the invalidity of the ballot meant that the protected action could not proceed, and therefore, the applicant's application for a variation of the Protected Action Ballot Order should be granted.

The Fair Work Commission varied the Protected Action Ballot Order to prevent the protected action from proceeding. The Commission held that the invalidity of the ballot meant that the protected action could not proceed, and therefore, the applicant's application for a variation of the Protected Action Ballot Order should be granted. The Commission further held that the respondent should take steps to ensure that any future ballots conducted met the legislative requirements for a valid ballot. This decision highlights the importance of ensuring that ballots conducted in relation to protected action meet the legislative requirements, and the consequences that can arise if they do not.

Australian Electoral Commission v BR & I Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established