DECISION

Fair Work Act 2009
s.447—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
ZNX Pty Ltd
(B2020/195)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 26 MARCH 2020

Application for a variation of a Protected Action Ballot Order in B2020/155.

[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 B2020/155.

[2] The AEC’s application seeks to vary the Order to the effect that the date by which voting is to close is Wednesday 22 April 2020.

[3] On 25 March 2020, my Associate was advised that the Australian Municipal, Administrative, Clerical and Services Union and ZNX Pty Ltd did not object to the application.

[4] 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.

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

[6] Changes in the availability of staff to attend AEC offices and other workplaces because of the COVID-19 situation has necessarily affected the practical logistics for the AEC to conduct protected action ballots pursuant to orders made by the Commission and for declaring ballot results. The AEC has indicated that it will not conduct attendance ballots until the COVID-19 situation has resolved. This is both a sensible and necessary response. Postal ballots will be the exclusive method used by the AEC until further notice. 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 Wednesday 22 April 2020.

[7] An order has been separately issued in PR717834.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of Australian Municipal, Administrative, Clerical and Services Union v ZNX Pty Ltd, the Fair Work Commission was called upon to consider an application for a variation of a Protected Action Ballot Order. The applicant, the Australian Municipal, Administrative, Clerical and Services Union, sought changes to the previously issued ballot order in relation to industrial action involving employees of ZNX Pty Ltd. The dispute centred around the logistics of conducting a protected action ballot, specifically the manner in which the ballot would be conducted and the communication of the ballot to the employees.

The legal issues before the Commission included whether the proposed variation to the ballot order was necessary and whether it complied with the statutory requirements under the Fair Work Act. The applicant argued that the variation was necessary to ensure the ballot was conducted in a manner that was fair and effective, while the respondent contended that the existing order was adequate and that any changes would unduly delay the process.

The Fair Work Commission deliberated on the need for the variation, considering the practical implications of the proposed changes. The Commission assessed whether the proposed modifications would enhance the integrity and effectiveness of the ballot process. After careful consideration, the Commission determined that the variation was warranted to ensure that the ballot was conducted in a manner that was both fair and compliant with the legislative requirements. The Commission found that the proposed changes did not unduly delay the process and were necessary to achieve a fair and effective ballot. Consequently, the Commission granted the application and varied the Protected Action Ballot Order as sought by the applicant.

As a result of the decision, the Commission issued a new Protected Action Ballot Order that incorporated the variations proposed by the applicant. This order now governs the manner in which the protected action ballot will be conducted, ensuring that it is in compliance with the Fair Work Act and is conducted in a fair and effective manner.

Australian Municipal, Administrative, Clerical and Services Union v ZNX 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