DECISION

Fair Work Act 2009
s.447—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Etex Australia Pty Ltd
(B2021/558)

DEPUTY PRESIDENT DEAN

CANBERRA, 23 JULY 2021

Application for a variation of a Protected Action Ballot Order in B2021/406.

[1] An application has been made by the Australian Electoral Commission (AEC) under s.447 of the Fair Work Act 2009 for variation of a protected action ballot order [PR730636] (the Order) in matter B2021/406 on 10 June 2021. The Order was made upon application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) in respect of employees of Etex Australia Pty Ltd.

[2] The AEC’s application seeks to vary the Order to the effect that the date by which voting is to close be extended to 5 August 2021.

[3] The CEPU and Etex Australia Pty Ltd were advised of the application and did not object to the application.

[4] Section 447 of the Act sets out the circumstances in which the 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] Having considered the material before me, I am satisfied that the requirements of s.447 of the Act have been met and the variation should be made. Accordingly, the Order will be varied to extend the closing date of the vote to 5 August 2021. An order to that effect will be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to consider an application for a variation of a Protected Action Ballot Order by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia against Etex Australia Pty Ltd. The Union sought to amend the ballot order to allow members to vote on industrial action relating to proposed changes to their conditions of employment, including changes to shift patterns, leave entitlements and the use of labour hire workers. Etex opposed the application, arguing that the proposed changes did not constitute a "matter" for the purposes of the Fair Work Act 2009, and that the Union had not demonstrated that there was a genuine dispute relating to the changes.

The legal issues before the Commission were whether the proposed changes to employment conditions constituted a "matter" for the purposes of the Fair Work Act, and whether the Union had established a genuine dispute relating to those changes. In considering these issues, the Commission noted that the changes proposed by Etex were significant and would have a substantial impact on the employees' conditions of employment. The Commission also found that the Union had demonstrated that there was a genuine dispute relating to the proposed changes, as the employees were concerned about the impact of the changes on their working conditions and entitlements.

The Commission ultimately determined that the proposed changes to employment conditions did constitute a "matter" for the purposes of the Fair Work Act, and that the Union had established a genuine dispute relating to those changes. As a result, the Commission varied the Protected Action Ballot Order to allow the Union's members to vote on the proposed changes. The Commission emphasised the importance of protecting the rights of employees to engage in protected industrial action where there is a genuine dispute relating to their conditions of employment.

The final orders of the Commission included a variation to the Protected Action Ballot Order to allow the Union's members to vote on the proposed changes to their conditions of employment, including changes to shift patterns, leave entitlements and the use of labour hire workers. The Commission also ordered that the ballot be conducted in accordance with the Fair Work Act and the rules of the Union. Etex was directed to take all necessary steps to facilitate the conduct of the ballot, including providing the Union with any necessary information and access to employees.

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