DECISION

Fair Work Act 2009
s.447—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Thales Australia Limited
(B2020/202)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 27 MARCH 2020

Application for a variation of a Protected Action Ballot Order in B2020/126.

[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 B2020/126.

[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 Thales Australia Limited 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 PR717890.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case between Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Thales Australia Limited involved an application for a variation of a Protected Action Ballot Order. The dispute was centred around the union's intention to conduct a protected industrial action ballot among its members, with Thales Australia Limited being the employer against whom the ballot was proposed. The application was heard in the Fair Work Commission, Australia’s independent statutory body with jurisdiction to resolve disputes over workplace relations.

The legal issues before the court encompassed the procedural correctness of the application for variation, the compliance with relevant sections of the Fair Work Act 2009, and the necessity and appropriateness of the proposed changes to the ballot. The union argued that the changes were necessary to address unforeseen circumstances that had arisen since the original ballot order was issued. Thales, on the other hand, contested the application, contending that the proposed changes were not warranted and could potentially undermine the integrity of the ballot process.

In its decision, the Fair Work Commission examined the arguments from both parties and assessed the merits of the application for variation. The court found that the union had provided sufficient justification for the changes, taking into account the unforeseen circumstances that warranted an adjustment to the original ballot order. The court considered the balance of convenience and the need to ensure that the ballot process remained fair and effective. Consequently, the Commission approved the variation to the Protected Action Ballot Order, allowing the union to proceed with the modified ballot under the stipulated conditions.

The Fair Work Commission's final orders permitted the union to conduct the modified ballot as requested, with the specific conditions outlined in the varied Protected Action Ballot Order. The decision underscored the importance of flexibility in industrial action processes while maintaining the integrity and fairness of the ballot procedure.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established