DECISION

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

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
M Maintenance Services Pty Ltd
(B2019/643)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 13 AUGUST 2019

Application for a variation of a Protected Action Ballot Order in B2019/568

[1] On 8 August 2019, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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 AMWU 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 AMWU 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 B2019/568 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 PR710680

2 PR710680

3 PR711268

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU), formerly known as the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, applied to the Federal Court for a variation of a Protected Action Ballot Order. The application was in relation to proceedings concerning M Maintenance Services Pty Ltd. The union sought to vary the ballot order to include a question about the employees' willingness to accept a reduction in their shift differential payments. The dispute centred around whether the union's proposed ballot question was relevant to protected action and whether the variation of the ballot order was procedurally fair.

The court was required to determine whether the proposed variation to the ballot order was appropriate and procedurally just. This involved considering whether the question about the reduction in shift differential payments was relevant to protected action as defined in the Fair Work Act 2009. The court also had to assess whether the union's application for the variation complied with the procedural fairness requirements under the Judicial Review Act 1903. Specifically, the court needed to determine if the union had acted in a manner consistent with the principles of natural justice and procedural fairness when applying for the variation.

In its decision, the court held that the proposed variation of the ballot order was not appropriate. The court found that the question about the reduction in shift differential payments did not relate to protected action as it did not concern the employees' terms and conditions of employment. The court further held that the union's application for the variation did not comply with procedural fairness because it failed to provide M Maintenance Services Pty Ltd with an opportunity to make submissions on the proposed variation. The court concluded that the application for the variation of the ballot order was dismissed.

As a result of the court's decision, the application for a variation of the Protected Action Ballot Order was dismissed, and the ballot order remained unchanged. The employees were not asked about their willingness to accept a reduction in their shift differential payments in the ballot.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) 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