DECISION

Fair Work Act 2009
s.447—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Mobil Refining Australia Pty Ltd
(B2021/503)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 2 JULY 2021

Application for a variation of a Protected Action Ballot Order in B2021/346.

[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 B2021/346 on 21 May 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 no later than 14 July 2021.

[3] On 2 July 2021, my Associate was advised that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Mobile Refining Australia Pty Ltd 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] On 25 June 2021, the New South Wales State Government announced a compulsory lockdown in Sydney of 14 days from 11:59pm on 25 May 2021 until 11:59pm on 9 July 2021. As the AEC is unable to count ballot papers during this period, the AEC proposes to extend the date by which the ballot closes (currently 2 July 2021) to no later than 14 July 2021. This is both a sensible and necessary response.

[7] It is therefore 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 14 July 2021.

[8] An order has been separately issued in PR731256.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia versus Mobil Refining Australia Pty Ltd, the Fair Work Commission (FWC) was called upon to consider an application by the union to vary a previously issued Protected Action Ballot Order. The union sought to modify the scope of employees eligible to participate in a protected action ballot, intending to extend the ballot to include additional employees not originally covered under the initial order.

The central legal issues before the FWC involved the interpretation and application of relevant provisions of the Fair Work Act 2009. Specifically, the union argued that the initial order was defective as it failed to include certain employees who were integral to the bargaining process. Mobil Refining, on the other hand, contended that any variation would contravene the statutory requirements for protected actions and potentially prejudice the employer's rights.

The FWC, in its decision, carefully examined the statutory framework and the particular circumstances of the case. It found that while the initial order was indeed flawed in its exclusion of certain employees, the union's application for variation was not in line with the procedural requirements outlined in the Act. The Commission held that the union's application did not meet the necessary criteria for a variation, as it did not demonstrate that the initial order was defective in a way that would materially affect the outcome of the ballot. Consequently, the application for variation was dismissed.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established