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
Metropolitan Fire and Emergency Services Board
(B2020/207)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 27 MARCH 2020

Application for a variation of a Protected Action Ballot Order in B2020/141.

[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 B2020/141.

[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 (AMWU) and the Metropolitan Fire and Emergency Services Board 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 PR717876.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Manufacturing Workers' Union, on behalf of certain employees of the Metropolitan Fire and Emergency Services Board, sought a variation of a Protected Action Ballot Order. The applicants argued that the order did not provide sufficient time for the distribution and collection of ballot papers due to the upcoming public holidays. The dispute arose from industrial action involving the employees, and the commission was tasked with determining whether the order should be varied to accommodate the holiday period.

The primary legal issue before the commission was whether the time frame provided in the original Protected Action Ballot Order was adequate under the circumstances, particularly given the impact of upcoming public holidays on the ballot process. The applicants contended that the existing time frame was insufficient, while the respondent argued that the order was reasonable and should not be altered. The commission had to balance the need for a fair and effective ballot process with the potential disruption to public services caused by the industrial action.

After considering the submissions from both parties, the commission found that the original time frame was not adequate to ensure a fair and effective ballot process, especially considering the upcoming public holidays. The commission determined that the time frame needed to be extended to allow for proper distribution and collection of ballot papers. Accordingly, the commission varied the order to provide additional time for these activities. The final decision was that the order was varied to include the extended time frame, ensuring that the employees had a fair opportunity to vote on the proposed industrial action.

The commission's final orders included a variation of the Protected Action Ballot Order to extend the time frame for ballot distribution and collection, taking into account the upcoming public holidays. This decision ensured that the employees had sufficient time to participate in the ballot process, thereby upholding the principles of fairness and due process in the conduct of industrial relations matters.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Metropolitan Fire and Emergency Services Board

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established