CPSU, the Community and Public Sector Union v G4S Custodial Services Pty Ltd

[2022] FWC 192

[2022] FWC 192

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.447—Protected action

CPSU, the Community and Public Sector Union
v

G4S Custodial Services Pty Ltd

(B2022/38)

Deputy President CLANCY MELBOURNE, 31 JANUARY 2022

Application for a variation of a Protected Action Ballot Order in B2021/1185.

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 B2021/1185 on 6 December 2021 (the Order).

1. 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 11 February 2022.

1. On 28 January 2022, my Associate was advised that the Community and Public Sector Union (CPSU) do not object to the application. On 30 January 2022, my Associate was advised that G4S Custodial Services Pty Ltd do not object to the application.

1. 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.

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

1. On 25 January 2022, the AEC received an email from the CPSU advising that seven of its members on the roll of voters for this ballot had not received the ballot paper. Prior to the CPSU’s email of 25 January 2022, two of the seven members had telephoned the AEC requesting a replacement ballot paper on the basis that they had not received their initial ballot paper. Replacement ballot papers were posted by the AEC to these two members on 21 January 2021. It is normal practice for the AEC to issue a replacement pack in these circumstances to ensure that all employees who are entitled to vote are able to vote. As the ballot was due to close on 28 January 2022, it is unlikely that the replacement ballot papers could be returned by the close of the ballot. In order to ensure the franchise of persons entitled to vote, the AEC proposes to extend the date by which the ballot closes from 28 January 2022 to no later than 11 February 2022. I consider this a sensible response.

1. 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 11 February 2022.

1. An order has been separately issued in PR737888.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR737887>