DECISION

Fair Work Act 2009
s.447—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia– Plumbing Division Queensland Divisional Branch
v
Mater Misericordiae Limited T/A Mater Group
(B2021/213)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 29 MARCH 2021

Application for a variation of a Protected Action Ballot Order in B2021/77.

[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 B2021/77 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– Plumbing Division Queensland Divisional 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 PR728155.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Plumbing Division Queensland Divisional Branch applied for a variation of a Protected Action Ballot Order. The applicant union, representing workers at Mater Misericordiae Limited, sought to add an additional protected action to the existing ballot order. Mater Misericordiae Limited, trading as the Mater Group, opposed the application.

The primary legal issue before the Commission was whether the proposed additional protected action was sufficiently related to the existing protected action and if it fell within the scope of the original ballot order. The Commission had to determine if the additional action was reasonably incidental to the existing protected action and if it was necessary for the protection of the employees’ interests.

The Commission found that the proposed additional protected action was related to the existing action and fell within the scope of the original ballot order. The additional action related to the same employer and the same industrial dispute, and it was necessary to protect the employees’ interests effectively. The Commission concluded that the additional action was reasonably incidental to the existing protected action and granted the variation to the ballot order to include the additional protected action. The Commission emphasised the importance of ensuring that the employees’ interests were adequately protected during the protected action process.

As a result of the Commission's decision, the variation to the Protected Action Ballot Order was granted, allowing the union to proceed with the additional protected action. This decision provided the union with the ability to take further action to protect its members' interests in the ongoing industrial dispute.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia- Plumbing Division Queensland Divisional 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