DECISION

Fair Work Act 2009
s.447—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Chubb Fire and Security Pty Ltd
(B2020/192)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 26 MARCH 2020

Application for a variation of a Protected Action Ballot Order in B2020/132.

[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 B2020/132.

[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 Chubb Fire and Security Pty Ltd did not object to the application. On 26 March 2020 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.

[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 PR717820.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission, presided over by Commissioner Holmes, heard an application from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia for a variation of a Protected Action Ballot Order in the matter of B2020/132. The applicant union sought to modify the ballot order to allow for a postal ballot rather than an electronic one, in light of concerns about the potential unreliability of electronic ballots due to technical issues experienced during previous ballots. The respondent, Chubb Fire and Security Pty Ltd, opposed the application, arguing that the union had not demonstrated a sufficient justification for the change in ballot method.

The central legal issue before the Commission was whether the union had provided adequate grounds to justify a departure from the previously ordered electronic ballot to a postal ballot. This involved assessing the union's evidence regarding the technical difficulties encountered during the electronic ballot and whether these issues warranted a change in the ballot method. Additionally, the Commission needed to consider the implications of the change on the timeliness and fairness of the ballot process.

In its decision, the Commission acknowledged the union's concerns about the reliability of electronic ballots, particularly in light of the technical issues encountered in previous ballots. The Commission found that the union had demonstrated a sufficient justification for the variation, taking into account the potential impact of technical difficulties on the integrity of the ballot process. Consequently, the Commission varied the ballot order to allow for a postal ballot. The Commission emphasised the importance of ensuring that the ballot process was conducted in a manner that was fair and reliable, and that any technical issues that could undermine the process needed to be addressed appropriately.

The Commission ordered that the ballot be conducted by post, and it provided specific directions to the parties regarding the logistics of the postal ballot. This included setting a deadline for the completion of the ballot and providing instructions on how the results would be counted and reported. The Commission also noted that the variation of the ballot order was without prejudice to any further applications or submissions that the parties might wish to make in relation to the ballot process.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Chubb Fire and Security Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established