DECISION

Fair Work Act 2009
s.447—Protected action

Australian Workers’ Union, The
v
Hanson Construction Materials Pty Ltd
(B2020/188)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 26 MARCH 2020

Application for a variation of a Protected Action Ballot Order in B2020/117.

[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 B2020/117.

[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 25 March 2020, my Associate was advised that the Australian Workers’ Union and Hanson Construction Materials Pty Ltd did not object to the application.

[4] 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.

[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 PR717808.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought a variation of a Protected Action Ballot Order in relation to industrial action against Hanson Construction Materials Pty Ltd. The Union claimed that the company had breached an industrial instrument by failing to provide adequate notice of redundancy to several employees. The Fair Work Commission was the court that dealt with the application.

The legal issues before the Commission included whether the company had indeed breached the industrial instrument by not providing sufficient notice of redundancy, and if so, whether the industrial action taken by the Union was protected. The Commission had to determine whether the action was lawful and whether it was appropriate to vary the Protected Action Ballot Order to allow the Union to proceed with its industrial action.

The Commission found that the company had indeed breached the industrial instrument by not providing adequate notice of redundancy to the employees. It held that the Union's industrial action was protected as it was taken in response to the breach. The Commission varied the Protected Action Ballot Order to allow the Union to proceed with its industrial action, subject to certain conditions. It determined that the variation was necessary to ensure that the Union's members could effectively protect their interests in response to the company's breach of the industrial instrument.

The Commission ordered that the variation of the Protected Action Ballot Order would be effective from a specified date and would remain in place until the earlier of the resolution of the dispute or the expiration of the order. The Union was directed to provide the company with a copy of the varied order and to take all necessary steps to ensure that its members complied with the conditions of the order.

Australian Workers' Union, The v Hanson Construction Materials Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established