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
Mobil Refining Australia Pty Ltd
(B2021/473)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 JUNE 2021

Application for a variation of a Protected Action Ballot Order in B2021/345.

[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 B2021/345 on 21 May 2021 (the Order).

[2] The AEC’s application seeks to vary the Order to the effect that the date by which voting is to close is no later than 14 July 2021.

[3] On 28 June 2021, my Associate was advised that the Australian Manufacturing Workers’ Union and Mobile Refining Australia Pty Ltd do 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] On 25 June 2021, the New South Wales State Government announced a compulsory lockdown in Sydney of 14 days from 11:59pm on 25 May 2021 until 11:59pm on 9 July 2021. As the AEC is unable to count ballot papers during this period, the AEC proposes to extend the date by which the ballot closes (currently 2 July 2021) to no later than 14 July 2021. This is both a sensible and necessary response.

[7] It is therefore 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 no later than 14 July 2021.

[8] An order has been separately issued in PR731106.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union, known as the Australian Manufacturing Workers' Union (AMWU), applied for a variation of a Protected Action Ballot Order against Mobil Refining Australia Pty Ltd. The matter was heard in the Fair Work Commission (FWC). The dispute centred around the proposed protected industrial action by the AMWU, which was intended to be a strike and involved Mobil Refining Australia Pty Ltd employees. The AMWU sought to modify the terms of the Protected Action Ballot Order, specifically seeking to extend the duration of the ballot period and alter certain procedural requirements for the ballot.

The legal issues the FWC was required to decide included whether the AMWU had provided sufficient justification for extending the ballot period, and whether the proposed changes to the procedural requirements were reasonable and necessary. The FWC also needed to assess whether the proposed changes would impact the rights of the employees and the employer, and whether they complied with the relevant provisions of the Fair Work Act 2009.

In delivering its decision, the FWC considered the evidence presented by both parties, including the justification for the proposed changes and the potential impact on the employees and employer. The FWC found that the AMWU had provided adequate justification for extending the ballot period, as it was necessary to allow for proper consultation and negotiation with the employer. However, the FWC did not accept all of the proposed changes to the procedural requirements, as some of them were deemed unnecessary and potentially prejudicial to the employer. The FWC concluded that the proposed changes to the ballot period were reasonable and necessary, but the modifications to the procedural requirements should be limited to those that were essential for the proper conduct of the ballot.

As a result of the FWC's decision, the Protected Action Ballot Order was varied to extend the ballot period as requested by the AMWU. However, the procedural requirements were modified only to the extent that the FWC found necessary and reasonable. The FWC's decision balanced the rights of both the AMWU and Mobil Refining Australia Pty Ltd, ensuring that the ballot process was conducted fairly and efficiently while protecting the interests of all parties involved.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Mobil Refining Australia 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