DECISION

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

Australian Workers' Union, The
v
Thales Australia Limited
(B2020/201)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 27 MARCH 2020

Application for a variation of a Protected Action Ballot Order in B2020/127.

[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 B2020/127.

[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 Thales Australia Limited 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 PR717880.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union applied to the Fair Work Commission to vary a Protected Action Ballot Order in relation to a proposed protected action by its members against Thales Australia Limited. The union sought to allow voting to occur on a Saturday, which is typically a non-working day for its members. Thales opposed the application, arguing that it would be an unreasonable burden to conduct the ballot on a Saturday. The matter was heard by the Fair Work Commission.

The legal issue before the Commission was whether it was reasonable to conduct the ballot on a Saturday. The Commission considered the nature of the proposed action, the impact on the members' personal lives, and the potential for coercion or undue influence on voting. The Commission also examined the practicality of conducting the ballot on a working day, as well as the potential for confusion or disenfranchisement of members if the ballot was held on a non-working day.

The Commission found that it was reasonable to conduct the ballot on a Saturday, as it would allow all members to participate without incurring additional costs or disruptions to their personal lives. The Commission noted that the union had taken steps to ensure that the ballot would be conducted fairly and that there was no evidence of coercion or undue influence. The Commission also found that conducting the ballot on a working day would be impractical, as it would require members to take time off work or travel long distances to vote. The application was therefore approved.

The Fair Work Commission approved the application and varied the Protected Action Ballot Order to allow voting to occur on a Saturday. The Commission noted that the union had taken appropriate steps to ensure that the ballot would be conducted fairly and that there was no evidence of coercion or undue influence. The decision provides guidance on the factors that the Commission will consider when deciding whether to approve a variation of a Protected Action Ballot Order.

Australian Workers' Union, The v Thales Australia Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established