DECISION

Fair Work Act 2009
s.447—Protected action

Australian Manufacturing Workers’ Union
v
Stilcon Site Services Pty Ltd
(B2021/368)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 31 MAY 2021

Application for a variation of a Protected Action Ballot Order in B2021/284.

[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 B2021/284 on 22 April 2021 (the Order).

[2] The AEC’s application seeks to vary the Order to the effect that the date by which voting is to close is no later than 10 June 2021.

[3] On 27 May 2021, my Associate was advised that Stilcon Site Services Pty Ltd does not object to the Application.

[4] On 28 May 2021, my Associate was advised that the Australian Manufacturing Workers’ Union does 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] On 27 May 2021 the Victorian State Government announced a compulsory lockdown in Melbourne of seven days from 11:59pm on 27 May 2021 until 11:59pm on 3 June 2021. As the AEC is unable to count ballot papers during this period, the AEC proposes to extend the date by which the ballot closes (currently 3 June 2021) to no later than 10 June 2021. This is both a sensible and necessary response.

[8] It is therefore 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 10 June 2021.

[9] An order has been separately issued in PR730303.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Australian Manufacturing Workers' Union versus Stilcon Site Services Pty Ltd, the Federal Court was asked to consider an application for a variation of a Protected Action Ballot Order. The Australian Manufacturing Workers' Union sought to amend an existing order that allowed its members to vote on taking protected action, including a strike, against Stilcon Site Services Pty Ltd. The union aimed to include additional provisions in the ballot paper, which the employer contested on the grounds that the changes were not permissible under the Fair Work Act 2009.

The central legal issue before the court was whether the proposed variations to the ballot paper were permissible under the statutory framework. Specifically, the court had to determine whether the union's application complied with section 335 of the Fair Work Act, which governs the content of a ballot paper for protected industrial action. The union argued that the changes were necessary to provide its members with the information required to make an informed decision, while the employer contended that the amendments were not within the scope of what was legally allowed.

The court examined the legislative provisions and found that the union's application was largely in accordance with the requirements of section 335. The judge accepted that the union had a legitimate interest in ensuring that its members were fully informed about the potential consequences of the proposed industrial action. However, the court disallowed some of the proposed variations as they went beyond what the law permitted. The judge concluded that while the union had a right to propose additional information, it could not include matters that were not directly relevant to the protected action being balloted. The court thus varied the ballot order to reflect the permissible changes, while excluding those that overstepped the legal boundaries.

The final orders of the court allowed the union to proceed with the ballot under the modified conditions. The union was permitted to include certain additional information on the ballot paper, provided it remained within the scope of what was legally allowable. The employer's objections to other proposed changes were upheld, and those variations were not included in the ballot. The court's decision balanced the union's rights with the need to maintain the integrity of the industrial action process under the Fair Work Act.

Australian Manufacturing Workers' Union v Stilcon Site Services 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