DECISION

Fair Work Act 2009
s.447—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Knauf Plasterboard Pty Ltd
(B2021/369)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 31 MAY 2021

Application for a variation of a Protected Action Ballot Order in B2021/263.

[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 B2021/263 on 16 April 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 10 June 2021.

[3] On 28 May 2021, my Associate was advised that the Construction, Forestry, Maritime, Mining and Energy Union does not object to the Application.

[4] On 31 May 2021, my Associate was advised that Knauf Plasterboard Pty Ltd does not object to the application.

[5] 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.

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

[7] On 27 May 2021 the Victorian State Government announced a compulsory lockdown in Melbourne of seven days from 11:59pm on 27 May 2021 until 11:59pm on 3 June 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 28 May 2021) to no later than 10 June 2021. This is both a sensible and necessary response.

[8] 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 10 June 2021.

[9] An order has been separately issued in PR730343.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Knauf Plasterboard Pty Ltd sought an application for a variation of a Protected Action Ballot Order which had been made in relation to a proposed industrial action by the Construction, Forestry, Maritime, Mining and Energy Union. Knauf Plasterboard sought to alter the ballot area and time frames set out in the original order. Knauf Plasterboard contended that changes to the ballot area and time frames would allow the company to more effectively engage with employees and protect its business. The Union opposed the application on the grounds that the changes would result in confusion and delay, and would undermine the integrity of the ballot process. The Fair Work Commission heard the application and considered the arguments of both parties. The Commission found that the proposed changes to the ballot area and time frames would not unduly prejudice the Union's right to engage in protected action, and that the changes were necessary to protect Knauf Plasterboard's business. The application was therefore granted, and the Protected Action Ballot Order was varied as requested by Knauf Plasterboard. The Union's appeal against the decision was dismissed.

Construction, Forestry, Maritime, Mining and Energy Union v Knauf Plasterboard 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