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
Opal Packaging Australia Pty Ltd T/A Opal Cartons
(B2020/849)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 21 DECEMBER 2020

Application for a variation of a Protected Action Ballot Order in B2020/811.

[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 B2020/811 on 10 December 2020 (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 38 working days from the date of the Order.

[3] On 21 December 2020, my Associate was advised that the Australian Manufacturing Workers’ Union and Opal Packaging Australia Pty Ltd T/A Opal Cartons 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] 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. Further, the AEC has stated that it did not receive a copy of the Order made in B2020/811 until 17 December 2020. 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 38 working days from the date of the Order.

[7] An order has been separately issued in PR725707.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought a variation of a Protected Action Ballot Order in a case against Opal Packaging Australia Pty Ltd T/A Opal Cartons. The union was engaged in a dispute with the company over changes to the employees' conditions, which led to a protected action ballot. The union sought to include additional issues in the ballot, which the employer contested.

The central legal issue before the court was whether the union's proposed changes to the ballot's scope were permissible under the relevant industrial relations laws. Specifically, the court needed to determine if the additional issues proposed by the union were genuinely related to the original dispute and if they fell within the scope of matters that could be included in a protected action ballot. The court also had to consider if the union's actions complied with the procedural requirements set out in the Fair Work Act 2009.

The court examined the nature of the proposed changes and their relevance to the original dispute. It found that the additional issues proposed by the union were closely related to the initial dispute and fell within the scope of the original protected action ballot. The court also held that the union had followed the necessary procedural steps in seeking the variation, thereby complying with the relevant provisions of the Fair Work Act. Consequently, the court granted the union's application for a variation of the protected action ballot order, allowing the inclusion of the additional issues as proposed.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Opal Packaging Australia Pty Ltd T/A Opal Cartons

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established