Australian Workers' Union, The v Contract Resources Pty Ltd T/A Contract Resources Pty Ltd

[2024] FWC 3020

[2024] FWC 3020

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.447 - Application for variation of protected action ballot order

Australian Workers' Union, The
v

Contract Resources Pty Ltd T/A Contract Resources Pty Ltd

(B2024/1398)

COMMISSIONER DURHAM BRISBANE, 30 OCTOBER 2024

Application for a variation of a Protected Action Ballot Order in B2024/1385

Background 

1. The Australian Workers’ Union (AWU) has made an application under s 447 of the Fair Work Act 2009 (Act) to vary a protected action ballot order issued by Deputy President Hampton on 24 October 2024 (PR780551). The ballot is to be conducted by Democratic Outcomes Pty Ltd (Agent). The application is opposed by Contract Resources Pty Ltd T/A Contract Resources Pty Ltd (Employer).

Relevant Legislation 

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.”

Consideration 

1. Section 447 provides that if an application is made under s 447(1) or (2), the Commission may vary a protected action ballot order. This confers a broad discretion. The variation sought by the AWU was for the date by which voting must close to be changed from 13 November 2024 to 8 November 2024. I note initially that the AWU sought that the date be changed from 13 November 2024 to 10 November 2024, however this was subsequently changed as this day fell on a Sunday.

1. The AWU seeks the variation on the basis that the ballot will be conducted electronically and as such, will be more efficient. The AWU contend that due to these efficiencies, the ballot will be able to be conducted over eight days rather than the originally proposed 14 days.   

1. The AWU have sought the views of the affected members Mr James Dowdie (Organiser), who provided a witness statement in his capacity as the representative of the affected employees. Mr Dowdie states: 

“The members are aware of the electronic voting system used and the shortened time frame to 8 November 2024, and they are acceptable that it is more than sufficient time (considering breaks and the ability to instantly complete the ballot at home) to answer the 23 questions within the Order.” 

1. In the circumstances, and by way of consent from the parties, I have decided to determine the matter on the papers without holding a hearing.

Procedural Fairness 

1. The Employer is of the view that the current timeline for the ballot provides a fair opportunity for eligible employees to vote. Shortening the ballot period they say, would affect voter accessibility and participation rates, noting that “Workforce numbers at the Lytton Refinery are due to fluctuate during the first few weeks of November due to the upcoming emergency turnaround works to be carried out by Contract Resources”.  

1. The AWU submits that the reduction in time will not reduce their members capacity to vote and express their views. They say that the electronic voting system will alert members via text message that the ballot has opened and members will receive their ballot via email. They argue that this will provide greater convenience for their members and allow them to complete the ballot in a short amount of time by voting at home/during a lunch break or other break over the eight days. 

1. Having considered the submission of the parties, I am satisfied that a slight reduction in the timeframe for the ballot does not pose any concerns relating to procedural fairness.  

Administrative Preparations and Resource Allocation   

1. The Employer submits that they consented to the current ballot timeframes with “resource planning and operational continuity in mind” they argue that reducing the timeframe for the ballot would place additional administrative burdens on the Employer and may hinder the Employer’s ability to efficiently manage these resources and risks creating undue disruption within the organization. 

1. The AWU however submits that as the ballot process is to be conducted electronically, rather than by paper ballot, and noting that members are likely to complete the ballot either at home or during their lunchbreaks, the process should in fact be less of a hindrance than a ballot conducted using paper ballots.  

1. Viewed objectively, it seems most likely that the ballot being conducted electronically will in actual fact provided greater efficiency and create less disruption than a ballot conducted using traditional paper votes. As such, I am not convinced that the Employer will be adversely impacted by the ballot closing three business days earlier. I am therefore not convinced that the granting of the application would be an administrative burden as suggested by the Employer.  

1. It is also of note that the ballot does not open until 1 November 2024, this will afford time to ensure members received their ballots in full appreciation of the new timeframes.   

1. I also note that the Order issued by Deputy President Hampton states “The date by which voting in the protected action ballot is to close is 13 November 2024” (emphasis added). It does not state that the ballot must close on 13 November 2024. As such, this does not preclude the ballot from closing earlier, but that it has to close by the 13 November 2024. This is consistent with United Workers' Union v Castrol Australia Pty Ltd where Deputy President Colman states:[1]

“[4] I asked the UWU whether a variation was necessary. The order as made specified the date by which the voting in the protected action ballot closes, not the date on which it must close. This was in accordance with s 443(3)(c), which requires an order to specify the date by which voting in the protected action ballot closes. At least on one view, the original order would permit the ballot agent to conclude the vote before 13 August 2024: a vote concluding on 8 August 2024 is also one that has concluded by 13 August. Nevertheless, the UWU, and apparently the ballot agent, wish for the matter to be clarified. In my view it is appropriate to vary the order, either to clarify that the vote may conclude on 8 August 2024 in accordance with the original order, or on the alternative view to alter the effect of the order to permit the vote to conclude on this date.”

1. Taking the above into consideration, and noting the evidence of Mr Downie with respect to there being no objections for the members concerned, I am not persuaded that there is issues with respect to procedural fairness or administrative preparations and resource allocation. I have therefore decided to vary the order to replace references to ‘13 November 2024’, which appear in paragraphs 4 and 8.2.2, with ‘8 November 2024’.

1. The Order PR780799 will be issued concurrently with this Decision.

COMMISSIONER

[1] [2024] FWC 2037, [4].

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