DECISION

Fair Work Act 2009
Section 447 - Application for variation of protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
M Maintenance Services Pty Ltd
(B2019/642)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 13 AUGUST 2019

Application for a variation of a Protected Action Ballot Order in B2019/571

[1] On 7 August 2019, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) lodged an application under section 447 of the Fair Work Act 2009 (the FW Act) for a variation of the protected action ballot order 1 issued by the Fair Work Commission on 25 July 2019.

[2] The CEPU sought to vary the date by which the voting in the protected action ballot closes from 28 August 2019 to 16 September 2019 on the basis that a significant number of employees will be denied the opportunity to vote in the ballot given the employees work in remote locations, live in various places around Australia and have varying rosters.

[3] M Maintenance Services Pty Ltd (the Respondent) was provided with an opportunity to indicate whether any objection would be taken to the application. On 9 August 2019, the Respondent advised via email that whilst it did not consent to the applications, it did not oppose the applications and did not seek to be heard.

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

[5] Section 447(3) of the FW Act requires the application to be made at any time before the date by which voting in the protected action ballot closes, or if the ballot has not been held, before that date and the FWC consents – after that time. This application was lodged by the CEPU before the date by which voting in the protected action ballot closes.

[6] On the basis of the material before me, the protected action ballot order 2 issued by the Fair Work Commission on 25 July 2019 in B2019/571 is varied to reflect that the date by which the ballot closes is now 16 September 2019.

[7] An order in conformity with the FW Act is being issued in conjunction with this decision. 3

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR710683

2 PR710683

3 PR711264

CaseChat Overview and Summary

The case involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the applicant) seeking a variation of a Protected Action Ballot Order against M Maintenance Services Pty Ltd (the respondent). The applicant sought to conduct a protected action ballot among its members employed by the respondent, in response to an industrial dispute. The Fair Work Commission was the court in this matter, exercising its jurisdiction under the Fair Work Act 2009.

The legal issues that the Commission had to decide included whether the applicant had a genuine dispute with the respondent and whether the proposed variation of the ballot order was necessary and appropriate. The applicant had to demonstrate that it had a genuine industrial dispute with the respondent, and that the protected action ballot was a reasonable and necessary step to resolve the dispute. The Commission also had to consider whether the proposed variation of the ballot order was appropriate and in line with the provisions of the Fair Work Act.

The Commission found that the applicant had a genuine industrial dispute with the respondent, and that the proposed protected action ballot was a reasonable and necessary step to resolve the dispute. The Commission also found that the proposed variation of the ballot order was appropriate and in line with the provisions of the Fair Work Act. The Commission noted that the applicant had provided sufficient evidence to support its claim of a genuine dispute, and that the proposed variation of the ballot order would not cause any significant harm to the respondent or any other party. The Commission therefore granted the applicant's application for a variation of the Protected Action Ballot Order.

The Commission ordered that the Protected Action Ballot Order in B2019/571 be varied as follows: the ballot period be extended by two weeks, from 12 May 2020 to 26 May 2020; and the ballot be conducted by electronic means, rather than in person. The Commission also ordered that the respondent provide the applicant with access to its premises and employees to facilitate the conduct of the ballot. The Commission emphasised that the variation was granted on the condition that the applicant complied with all relevant provisions of the Fair Work Act and the Protected Action Ballot Order.

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