Australian Nursing and Midwifery Federation v Serco Australia Pty Ltd

[2022] FWC 572

[2022] FWC 572

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.447—Protected action

Australian Nursing and Midwifery Federation
v

Serco Australia Pty Ltd

(B2022/196)

DEPUTY PRESIDENT CLANCY MELBOURNE, 15 MARCH 2022

Application for a variation of a Protected Action Ballot Order in B2022/41.

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 B2022/41 on 2 February 2022 (the Order).

1. 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 6 April 2022.

1. On 11 March 2022, my Associate was advised that the Australian Nursing and Midwifery Federation and Serco Australia Pty Ltd do not object to the application.

1. 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.

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

2. The AEC seeks to vary the date by which voting closes to accommodate a further period to allow voters whose postal vote packs may have been affected by recent flooding in New South Wales and Queensland to apply for a replacement vote pack; and so that ballots which have already been posted by voters but have not yet been delivered to the AEC can be delivered before voting closes. In order to ensure the franchise of persons entitled to vote, the AEC proposes to extend the date by which the ballot closes from 16 March 2022 to no later than 6 April 2022. I consider this both a sensible and necessary response.

1. 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 6 April 2022.

1. An order has been separately issued in PR739308.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR739307>