“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v South Australian Water Corporation T/A SA Water

[2021] FWC 5658

[2021] FWC 5658

FAIR WORK COMMISSION

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

South Australian Water Corporation T/A SA Water

(B2021/877)

Deputy President CLANCY MELBOURNE, 9 SEPTEMBER 2021

Application for a variation of a Protected Action Ballot Order in B2021/614.

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 B2021/614 on 2 August 2021 (the Order).

1. 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 17 September 2021.

1. On 9 September 2021, my Associate was advised that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union and South Australian Water Corporation T/A SA Water do not object to the application.

1. 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.

1. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

1. On 2 September 2021, the AEC received a declaration from an employee on the roll of voters for this ballot, stating that they had inadvertently destroyed the ballot paper and requesting a replacement ballot paper. The AEC says it is normal practice for them to issue a replacement pack in these circumstances to ensure that all employees who are entitled to vote are able to vote. Due to an administrative error by the AEC, the replacement pack was not sent. This error was discovered on 7 September 2021. To ensure that no voter is disenfranchised, the AEC advised it would express post a replacement ballot paper to the relevant employee on 8 September 2021. As the ballot is presently due to close on 10 September 2021, the AEC says it is unlikely that the replacement ballot papers can be returned by the close of the ballot. In order to ensure the franchise of persons entitled to vote, the AEC proposes to extend the date by which the ballot closes (currently 10 September 2021) to no later than 17 September 2021. I consider this a sensible response.

1. 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 17 September 2021.

1. An order has been separately issued in PR733731.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR733730>