Australian Nursing and Midwifery Federation v Moorabool Shire Council

[2021] FWC 2838

[2021] FWC 2838

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.447—Protected action

Australian Nursing and Midwifery Federation
v
Moorabool Shire Council
(B2021/330)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 18 MAY 2021

Application for a variation of a Protected Action Ballot Order in B2021/212.

[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 B2021/212 on 30 March 2021 (the Order).

[2] The AEC’s application sought to vary the Order to the effect that the date by which voting is to close is by 17 June 2021.

[3] On 14 May 2021, my Associate was advised that Moorabool Shire Council did not object to the application.

[4] While the Australian Nursing and Midwifery Federation initially objected to the application, it withdrew its objection on 18 May 2021 after the AEC agreed to conduct the ballot by express post and agreed to seek to vary the Order to the effect that the date by which voting is to close is by 3 June 2021.

[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] The AEC has indicated that due to a printing error, question 11 of clause [5] of the Order was omitted in the ballot papers issued to the voters. In the result, question 11 was not put to the voters as required by the Order. The AEC proposes to extend the date by which the ballot closes to allow time for appropriate remedial action to be undertaken. This is both a sensible and necessary response.

[8] Therefore, 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 by 3 June 2021.

[9] An order has been separately issued in PR729946.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR729945>