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
Berri Pty Limited
(B2020/193)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 26 MARCH 2020

Application for a variation of a Protected Action Ballot Order in B2020/146.

[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 B2020/146.

[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 and Berri Pty 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 PR717831.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, the Australian Manufacturing Workers' Union (AMWU), sought a variation of a Protected Action Ballot Order in a matter involving Berri Pty Limited. The union, representing employees, aimed to organise a protected industrial action ballot. The court was tasked with determining whether the application met the necessary legal criteria for such a variation. The AMWU argued that the circumstances had changed since the original order was made, warranting a reconsideration of the terms.

The central legal issue was whether the AMWU's application complied with the relevant statutory provisions and common law principles governing protected action ballot orders. The court examined the application's compliance with the necessary procedural requirements, including whether the union had demonstrated a genuine change in circumstances that warranted a variation of the original order. The court also considered whether the proposed variation would be fair and reasonable in the context of the employment relations and the rights of both the union and the employer.

After a thorough analysis, the court found that the AMWU's application did not adequately demonstrate the required change in circumstances. The union had not provided sufficient evidence to support the claim that conditions had materially altered since the initial order was issued. Consequently, the court determined that the application did not meet the statutory and common law requirements for a variation of the ballot order. The court emphasised the importance of precise and compelling evidence in applications for variations of protected action ballot orders.

The court dismissed the AMWU's application for a variation of the Protected Action Ballot Order, maintaining the original terms as set out in the earlier order. The union was directed to proceed with the ballot under the initial conditions as specified. The decision underscored the necessity for unions to substantiate any claims of changed circumstances with robust evidence when seeking variations to existing protected action orders.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Berri Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established