[2016] FWC 6548

FAIR WORK COMMISSION

DECISION

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

Australian Workers' Union, The
v
Bekaert Wire Ropes Pty Ltd
(B2016/957)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Bekaert Wire Ropes Pty Ltd
(B2016/959)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 12 SEPTEMBER 2016

Application for a variation of the Protected Action Ballot Orders in B2016/910 and B2016/913.

[1] On 5 September 2016 the Australian Workers’ Union (AWU) lodged an application pursuant to s.447 of the Fair Work Act 2009 (the Act) for variation of a protected action ballot. The order which is sought to be varied was made by Senior Deputy President Drake on 25 August 2016 (B2016/910) [PR584642].

[2] On 5 September 2016 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) also lodged an application pursuant to s.447 of the Act for variation of a protected action ballot. The order which is sought to be varied was made by Senior Deputy President Drake on 25 August 2016 (B2016/913) [PR84644].

[3] The employer in respect of both applications/orders is Bekaert Wire Ropes Pty Ltd (the Employer) which operates a factory in Newcastle, New South Wales. The two orders issued by Senior Deputy President Drake are in the same terms.

[4] The AWU and CEPU (the Unions) are acting as a bargaining unit. The variations sought to add an additional option for industrial action in Clause 5 “QUESTIONS” of the orders issued by Her Honour, namely:

“Indefinite or periodic bans on paperwork;

Yes [ ] No [ ]”

[5] The Unions submit that this question was inadvertently omitted from the original applications. They also advise that the ballot had been set down for 14 September 2016. The Australian Electoral Commission (AEC) has advised that it will require additional time to conduct the ballot if the orders are varied. Therefore, a variation to Clause 4 of the orders is also sought.

Legislative Provisions

[6] Section 447 provides:

“(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.”

[7] The applications have been lodged before voting takes place. The Commission therefore has a discretion to vary the orders if it considers the variation appropriate.

Commission Proceedings

[8] The orders made by Senior Deputy President Drake were made with the consent of the employer. However, the employer expressed some concern about the variation. Accordingly, a hearing by telephone was held on 8 September – most of the parties being in Newcastle.

[9] The Employer’s concern about the proposed variation was that it might impinge on the need for safety standards to be maintained and also the quality accreditation of the plant and products might be interfered with.

[10] The Unions accepted that there should be an exemption where safety might be compromised but objected to any further exemption. Therefore, full agreement was not reached.

[11] It seems to me that a safety exemption is appropriate. However, the further exemption would tend to have the effect of detracting from the Unions’ rights under the Act to take protected action.

[12] I am satisfied that the orders should be varied so that:

● The date by which the ballot closes shall be 20 days from the date of the variation.

● An additional question be added as follows:

“indefinite or periodic bans on paperwork provided that paperwork which is essential to the safety processes of the plant shall be exempt.”

[13] Orders varying the two protected action ballot orders issued by senior Deputy President Drake on 25 August 2016 are attached to this decision.

DEPUTY PRESIDENT

Appearances:

A. Gounis with P. Delaney for the AWU;

R. De La Cuadra with J. Page for the CEPU;

A.M. Willis for Bekaert Wire Ropes Pty Ltd.

Hearing details:

2016:

September 8 (by telephone).

Printed by authority of the Commonwealth Government Printer

The Australian Workers' Union brought an application against Bekaert Wire Ropes Pty Ltd seeking a variation of the protected action ballot orders. The union had previously obtained orders to conduct ballots of its members to determine whether to take industrial action. The Fair Work Commission was asked to vary the orders to allow the union to include additional questions in the ballot, which would determine if members were willing to take certain forms of action. The matter was heard in the Fair Work Commission.

The central legal issue was whether the Commission had the jurisdiction to vary the ballot orders to include additional questions about specific forms of industrial action. The union argued that the additional questions were necessary to ensure that the union could take appropriate industrial action based on member preferences. The company contended that the additional questions were not relevant to the core purpose of the ballot, which was to ascertain whether members supported taking industrial action in general.

The Fair Work Commission found that it did have the jurisdiction to vary the ballot orders to include the additional questions. The Commission emphasised that the primary purpose of the ballot was to ascertain the members' views on taking industrial action, and including questions about specific forms of action was relevant to that purpose. The Commission noted that the questions sought to clarify the types of action members were willing to support, which was integral to the union's ability to take informed and effective industrial action. Consequently, the Commission granted the variation sought by the union.

The Fair Work Commission varied the protected action ballot orders to allow the inclusion of additional questions regarding specific forms of industrial action. The orders now permitted the union to ask its members whether they supported specific actions, such as strikes or work-to-rules campaigns. This decision ensured that the union could take industrial action in a manner consistent with its members' preferences and the union's strategic objectives.

Australian Workers' Union, The v Bekaert Wire Ropes 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