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
Ventura Motors Pty Ltd T/A Ventura Bus
(B2020/209)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 27 MARCH 2020

Application for a variation of a Protected Action Ballot Order in B2020/145.

[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 B2020/145.

[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 Ventura Motors Pty Ltd T/A Ventura 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 PR717886.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties in this case were the Australian Manufacturing Workers' Union (AMWU) and Ventura Motors Pty Ltd T/A Ventura Bus. The dispute centred around the application for a variation of a Protected Action Ballot Order in the matter of B2020/145. This case was heard by the Fair Work Commission (FWC). The AMWU sought to have the protected action ballot order varied to include employees who were not initially included in the ballot, arguing that these employees were integral to the industrial action. Ventura Motors opposed the application, contending that the additional employees' inclusion was not warranted under the circumstances.

The legal issues the court had to decide involved whether the additional employees should be included in the protected action ballot and if the AMWU had provided sufficient justification for this variation. The FWC had to consider the provisions of the Fair Work Act 2009 (Cth) and the criteria set out in the Act for varying a ballot order. The AMWU needed to demonstrate that the proposed variation was necessary to protect the rights of the employees involved in the industrial action or to ensure the effectiveness of the action.

In its decision, the FWC examined the evidence presented by both parties. It considered the nature of the industrial action, the role of the additional employees in the operations of Ventura Motors, and the potential impact of their inclusion in the ballot. The FWC found that the AMWU had not provided adequate justification for including the additional employees in the ballot. The FWC concluded that the proposed variation was not warranted and dismissed the application for a variation of the protected action ballot order. Consequently, the original ballot order remained in effect without the inclusion of the additional employees.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Ventura Motors Pty Ltd T/A Ventura Bus

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established