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
Thales Australia Limited
(B2020/200)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 27 MARCH 2020

Application for a variation of a Protected Action Ballot Order in B2020/125.

[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 B2020/125.

[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 and Thales Australia Limited 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 PR717870.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Manufacturing Workers' Union (AMWU) sought a variation of a protected action ballot order in relation to a dispute with Thales Australia Limited. The union aimed to conduct a protected action ballot amongst its members, seeking to potentially undertake industrial action due to ongoing disputes over wages and working conditions within Thales Australia Limited. The Commission was called upon to determine whether the variation of the ballot order was justified under the Fair Work Act 2009.

The central legal issue before the Commission was whether the proposed variation of the protected action ballot order was necessary and appropriate in the circumstances. The AMWU argued that changes to the ballot order were required due to significant developments in the dispute, including Thales Australia Limited's refusal to negotiate in good faith and its implementation of changes to working conditions that adversely affected employees. The Commission had to consider whether these developments warranted a variation of the original ballot order to ensure the process remained fair and effective.

The Commission carefully considered the arguments presented by both parties and examined the developments in the dispute. It found that the changes to working conditions and Thales Australia Limited's conduct did indeed warrant a variation of the ballot order to ensure the process remained fair and relevant. The Commission concluded that the AMWU's application for variation was justified, and it varied the original ballot order to reflect the current state of the dispute. This decision allowed the union to proceed with a ballot that was tailored to the specific circumstances of the case.

The Commission's final orders included the variation of the original protected action ballot order to reflect the changes in the dispute, allowing the AMWU to conduct a ballot among its members in accordance with the updated terms. This decision provided a clear path forward for the union in its pursuit of fair wages and working conditions for its members at Thales Australia Limited.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established