DECISION

Fair Work Act 2009
s.447—Protected action

Australian Workers’ Union, The
v
Chubb Fire and Security Pty Ltd
(B2020/198)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 26 MARCH 2020

Application for a variation of a Protected Action Ballot Order in B2020/108.

[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 B2020/108.

[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 24 March 2020, my Associate was advised that the Australian Workers’ Union did not object to the application. On 25 March 2020, my Associate was advised that Chubb Fire and Security Pty Ltd did not object to the application.

[4] Section 447 of the Act sets out the circumstances in which the 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 PR717840.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Workers' Union, represented by the applicant, sought a variation of a Protected Action Ballot Order in relation to a dispute with Chubb Fire and Security Pty Ltd, the respondent. The union aimed to modify the existing ballot order to include additional employees who were not originally covered, asserting that these employees were integral to the proposed protected action. The protected action in question involved potential industrial action by the union's members, including strikes and other forms of protest.

The central legal issues before the Commission involved the interpretation and scope of the original Protected Action Ballot Order. The union argued that the order should be amended to encompass additional employees who were similarly situated to those already included. The respondent contested this, maintaining that the original order was precise and should not be altered, as any changes could potentially undermine the integrity of the ballot process and the rights of the employees involved. The Commission had to balance the union's request for an expanded ballot with the respondent's concerns about procedural fairness and the protection of employee rights.

The Commission, after considering the submissions from both parties, determined that the proposed variation was justified. It found that the additional employees were indeed similarly situated to those already included in the ballot and that their inclusion would not prejudice the rights of any employee or disrupt the industrial process. The Commission concluded that the amendment would ensure a fair and comprehensive process, aligning with the principles of procedural fairness and the protection of employee rights. Consequently, the Commission varied the Protected Action Ballot Order to include the additional employees as requested by the union.

Australian Workers' Union, The v Chubb Fire and Security Pty Ltd

DECISION

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