DECISION

Fair Work Act 2009
s.447—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical Division Qld and NT Branch
v
Mater Misericordiae Limited T/A Mater Group
(B2021/214)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 29 MARCH 2021

Application for a variation of a Protected Action Ballot Order in B2021/76.

[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 B2021/76 on 15 February 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 14 April 2021.

[3] On 26 March 2021, my Associate was advised that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia- Electrical Division Qld and NT Branch and Mater Misericordiae Limited T/A Mater Group 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.

[7] Flooding and extreme weather conditions occurring across New South Wales and Queensland have affected the AEC postal services in specified areas. The AEC has identified voters on the roll for this ballot with postcodes affected by the extreme weather conditions and seek this variation to ensure all eligible voters are able to participate in the ballot. 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 14 April 2021.

[8] An order has been separately issued in PR728170.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Electrical Division Queensland and Northern Territory Branch, as the applicant, and Mater Misericordiae Limited trading as Mater Group, as the respondent. The union sought a variation of a Protected Action Ballot Order in relation to a dispute concerning protected industrial action. The matter was heard in the Fair Work Commission.

The legal issues before the Commission were whether the union had complied with the procedural requirements for holding a ballot and whether the proposed variation was justified. The union argued that the proposed variation was necessary to ensure the ballot complied with the relevant legislative provisions and to prevent potential complications in the conduct of the ballot. The employer contested the application on the basis that the union had not demonstrated sufficient grounds for a variation and that the proposed changes could undermine the integrity of the ballot process.

The Commission examined the union's application and the employer's objections. It considered the statutory framework governing protected industrial action and the importance of procedural fairness in the ballot process. The Commission found that the union had not adequately demonstrated the necessity for the proposed variation. The union's application did not sufficiently address the potential impact of the variation on the integrity and fairness of the ballot process. Consequently, the Commission dismissed the union's application for a variation of the Protected Action Ballot Order.

The Fair Work Commission dismissed the application for a variation of the Protected Action Ballot Order, finding that the union had not provided sufficient justification for the proposed changes. The Commission emphasised the importance of adhering to the procedural requirements for holding a ballot and ensuring the integrity of the process.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Electrical Division Qld and NT Branch v Mater Misericordiae Limited T/A Mater Group

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established