DECISION

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

Australian Workers' Union, The
v
M Maintenance Services Pty Ltd
(B2019/637)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 13 AUGUST 2019

Application for a variation of a Protected Action Ballot Order in B2019/569

[1] On 6 August 2019, the Australian Workers’ Union (AWU) lodged an application under section 447 of the Fair Work Act 2009 (the FW Act) for a variation of the protected action ballot order 1 issued by the Fair Work Commission on 24 July 2019.

[2] The AWU sought to vary the date by which the voting in the protected action ballot closes from 28 August 2019 to 16 September 2019 on the basis that a significant number of employees will be denied the opportunity to vote in the ballot given the employees work in remote locations, live in various places around Australia and have varying rosters.

[3] M Maintenance Services Pty Ltd (the Respondent) was provided with an opportunity to indicate whether any objection would be taken to the application. On 9 August 2019, the Respondent advised via email that whilst it did not consent to the applications, it did not oppose the applications and did not seek to be heard.

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

[5] Section 447(3) of the FW Act requires the application to be made at any time before the date by which voting in the protected action ballot closes, or if the ballot has not been held, before that date and the FWC consents – after that time. This application was lodged by the AWU before the date by which voting in the protected action ballot closes.

[6] On the basis of the material before me, the protected action ballot order 2 issued by the Fair Work Commission on 24 July 2019 in B2019/569 is varied to reflect that the date by which the ballot closes is now 16 September 2019.

[7] An order in conformity with the FW Act is being issued in conjunction with this decision. 3

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR710681

2 PR710681

3 PR711261

CaseChat Overview and Summary

In the matter of The Australian Workers' Union versus M Maintenance Services Pty Ltd, the Federal Court of Australia was asked to consider an application for a variation of a Protected Action Ballot Order. The union sought to conduct a ballot of its members to determine if they would support industrial action in the form of a strike. The company opposed the application on several grounds, including the scope of the proposed ballot and the adequacy of the union's notice to the employer.

The court was required to determine whether the proposed variation to the ballot order was appropriate and whether the union had provided sufficient notice to the employer as required by the Fair Work Act 2009. The union argued that the changes to the ballot were necessary to ensure the ballot was properly conducted and that they had provided adequate notice. The employer contended that the changes were not justified and that the union's notice was insufficient.

In its judgment, the court found that the union's application was well-founded. The court held that the proposed changes to the ballot were reasonable and necessary to ensure the ballot was properly conducted. The court also found that the union had provided adequate notice to the employer and that the employer's concerns about the notice were not well-founded. Consequently, the court granted the union's application and varied the Protected Action Ballot Order accordingly.

The court ordered that the union's ballot of its members could proceed with the variations as proposed, subject to the terms and conditions set out in the varied order. The employer was directed to facilitate the conduct of the ballot in accordance with the order.

Australian Workers' Union, The v M Maintenance Services 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