CPSU, the Community and Public Sector Union v Management & Training Corporation Pty Ltd T/A MTC Australia Summary

[2022] FWC 3054

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.447—Protected action

CPSU, the Community and Public Sector Union
v

Management & Training Corporation Pty Ltd T/A MTC Australia

(B2022/1734)

COMMISSIONER MCKINNON

SYDNEY, 17 NOVEMBER 2022

Application for a variation of a Protected Action Ballot Order in B2022/1685

The CPSU, the Community and Public Sector Union (CPSU) has applied to vary the protected action ballot order issued on 10 November 2022 (PR747808)[1] under s.447 of the Fair Work Act 2009 (the Act).

The application seeks to extend the date by which the ballot must close to no later than 12 working days from the date of the Order.

Section 447 of the Act sets out the circumstances in which the 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.”

Management & Training Corporation Pty Ltd T/A MTC Australia (MTC Australia) consent to the proposed variation. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

The Order to which this application relates provided for a short voting period at the urging of the CPSU, with assurances given that the timeframe could easily be met. A simple communication error since then has put the timeframe out of reach. I consider it appropriate in the circumstances that a variation be made. In my view, the additional time sought by the CPSU is too short given the potential for further technical errors and the need for certainty in relation to the timetable. The Order will be varied to extend the date by which voting must close to 1 December 2022.

An Order has been issued separately in PR748000.

COMMISSIONER

Hearing details:

Determined on the papers.

[1] CPSU, the Community and Public Sector Union v Management & Training Corporation Pty Ltd T/A MTC Australia (B2022/1685)

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case between the Community and Public Sector Union (CPSU) and Management & Training Corporation Pty Ltd trading as MTC Australia involved a request by the CPSU to modify a protected action ballot order. The ballot order, which was initially issued under section 447 of the Fair Work Act 2009, had set a strict timeline for voting to conclude. The CPSU sought to extend this timeline to allow for additional working days for the ballot to close. The application was made to the Fair Work Commission by the CPSU, and MTC Australia agreed to the proposed changes without contesting the application.

The legal issue at the core of this case was whether the Fair Work Commission had the authority to amend the protected action ballot order in accordance with the CPSU's application. The Commission had to consider the provisions of section 447 of the Fair Work Act, which outlines the circumstances under which a ballot order can be altered. Specifically, the Commission needed to determine whether the proposed extension was justified due to a communication error that had compromised the initial voting period and if the additional time was reasonable to ensure the process could be completed without further issues.

The Commissioner, McKinnon, decided to vary the ballot order after reviewing the application and considering the consent of MTC Australia. The Commissioner concluded that the additional time requested by the CPSU was necessary, despite the short notice of the application, due to the potential for ongoing technical errors and the importance of maintaining certainty in the timetable for the ballot. As a result, the Commissioner extended the closing date for the ballot to 1 December 2022. This decision was made without the need for a hearing, as the matter was deemed suitable to be determined on the papers submitted.

An order was subsequently issued in PR748000, reflecting the variation of the ballot order as decided by the Commissioner. This order provided the CPSU with the additional time required to conduct the ballot effectively, taking into account the circumstances that led to the initial application for variation.

CPSU, the Community and Public Sector Union v Management & Training Corporation Pty Ltd T/A MTC Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established