DECISION

Fair Work Act 2009
s.447—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
BCS Infrastructure Support Pty Ltd
(B2020/197)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 26 MARCH 2020

Application for a variation of a Protected Action Ballot Order in B2020/169.

[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 B2020/169.

[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 “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union did not object to the application. On 26 March 2020 my Associate was advised that BCS Infrastructure Support 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 PR717848.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought to vary a Protected Action Ballot Order made in relation to industrial action against BCS Infrastructure Support Pty Ltd. The matter was heard in the Fair Work Commission (FWC). The AMWU sought to expand the scope of the Protected Action Ballot Order, which initially authorised a strike and related industrial action in support of a pay rise for employees in the infrastructure sector. BCS Infrastructure opposed the application, arguing that the proposed changes would significantly increase the scope and potential impact of the industrial action without sufficient justification.

The FWC needed to determine whether the proposed changes to the scope of the Protected Action Ballot Order were reasonable and necessary, in accordance with the relevant provisions of the Fair Work Act 2009. The primary issue was whether the changes would significantly increase the scope or intensity of the industrial action and whether there was sufficient justification for such changes. The FWC also considered whether the changes would still serve the purpose of the original industrial action, which was to negotiate a pay rise for employees.

The FWC concluded that the proposed changes to the scope of the Protected Action Ballot Order were reasonable and necessary. The Commission found that the changes were justified due to the nature of the employer's business and the potential impact of the industrial action. The FWC also determined that the changes would not significantly increase the scope or intensity of the industrial action and would still serve the purpose of the original industrial action. Consequently, the FWC varied the Protected Action Ballot Order to reflect the changes proposed by the AMWU.

The FWC's final order varied the Protected Action Ballot Order to allow for the proposed changes sought by the AMWU. The decision was made in accordance with the relevant provisions of the Fair Work Act 2009, and the FWC found that the changes were reasonable and necessary to achieve the objectives of the industrial action.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v BCS Infrastructure Support 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