Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Addelec Power Services Pty Ltd Summary

[2023] FWC 405

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.447—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v

Addelec Power Services Pty Ltd

(B2023/123)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 21 FEBRUARY 2023

Application for a variation of a Protected Action Ballot Order in B2023/9.

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 B2023/9 on 10 January 2023 (the Order).

The AEC’s application, made on 16 February 2023, seeks to vary the Order to the effect that the date by which voting is to close is no later than 22 March 2023.

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.

The background and context for the application is that on 15 February 2023, the AEC became aware that the ballot papers which had been posted to voters only contained questions 1 to 10 of the Order rather than the full list of questions 1 to 19. In order to accommodate a further period to allow for new ballot papers containing the full list of questions 1 to 19 to be posted to voters, the AEC proposes to extend the date by which the ballot closes to no later than 22 March 2023.

On 16 February 2023, my Associate was advised that Addelec Power Services Pty Ltd did not object to the application. On 17 February 2023, my Associate was advised that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia did not object to the application.

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

Having regarding to the material before me, I am satisfied 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 no later than 22 March 2023.

An order has been separately issued in PR750728.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was presented with an application from the Australian Electoral Commission (AEC) to vary an existing protected action ballot order under Section 447 of the Fair Work Act 2009. The applicant, AEC, sought to alter the ballot order to extend the voting period to no later than 22 March 2023. The parties involved in the dispute were the AEC, the respondent Addelec Power Services Pty Ltd, and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. The application arose from an issue where ballot papers distributed to voters contained only questions 1 to 10, instead of the complete set of questions 1 to 19 as outlined in the original ballot order. This omission necessitated a revision of the ballot order to provide additional time for the distribution of corrected ballot papers.

The primary legal issue before the FWC was whether the circumstances warranted a variation of the protected action ballot order in accordance with Section 447 of the Fair Work Act 2009. The Commission had to assess whether the error in the ballot papers justified extending the voting period to ensure fairness and accuracy in the ballot process. Additionally, the FWC needed to consider the responses from Addelec Power Services Pty Ltd and the union, both of which did not object to the application. The reasoning behind the FWC’s decision involved a careful examination of the provided materials and the necessity of correcting the ballot papers to maintain the integrity of the voting process.

Upon reviewing the application and the responses from the involved parties, Deputy President Clancy determined that varying the ballot order was appropriate. The error in the ballot papers, which omitted several questions, created a situation where voters were not fully informed, thereby impacting the fairness of the ballot process. Given that both Addelec Power Services Pty Ltd and the union did not object to the application, the Deputy President concluded that extending the voting period was justified to rectify the error. Consequently, the Order was varied to allow voting to close no later than 22 March 2023, ensuring that all voters received ballot papers containing the full set of questions.

The final orders issued by the FWC varied the protected action ballot order to extend the voting period to no later than 22 March 2023. This decision was made to rectify the error in the ballot papers and ensure that all voters had access to the complete set of questions. The orders were issued in accordance with the provisions of Section 447 of the Fair Work Act 2009, reflecting the FWC’s authority and responsibility to maintain fair and accurate ballot processes.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Addelec Power Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established