The Australian Workers' Union v GrainCorp Operations Limited

[2017] FWC 3849

[2017] FWC 3849

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.447 - Application for variation of protected action ballot order

The Australian Workers' Union
v
GrainCorp Operations Limited
(B2017/584)

DEPUTY PRESIDENT COLMAN MELBOURNE, 21 JULY 2017

Application for a variation of a Protected Action Ballot Order in B2017/493.

[1] This decision relates to an application by the Australian Workers’ Union (AWU) to vary a protected action ballot order made on 27 June 2017 by the Commission as presently constituted, in matter B2017/493 (Order).

[2] Paragraph 4 of the Order stated that the date by which voting in the protected action ballot was to close was 20 working days from the date of the Order. In this regard, the Order was in the form sought by the AWU.

[3] The AWU’s application to vary the Order seeks to put back the date by which voting is to close by 14 days, from 25 July until 8 August 2017. The application is opposed by GrainCorp Operations Limited (GrainCorp), which was the respondent in the proceedings concerning the Order.

[4] The application is made pursuant to s447 of the Fair Work Act 2009 (the Act), which states:

“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] The AWU advanced two principal grounds in support of its application. First, it stated that most of its relevant members reside in rural Victoria, some in remote locations, and that Australia Post had advised that it could not guarantee delivery of regular mail in less than six working days in such situations. It contended that from the 20 days allocated by the Order, the sending out and returning of the ballot papers could occupy 12 working days and 4 weekend days, totalling 16 days. The AWU submitted that it was probable that some members would not have an opportunity to properly consider their votes and return them within the 20 days.

[6] Secondly, the AWU contended that the first week of the ballot had fallen on school holidays and that many members had taken leave and might not return in time to cast their ballot.

[7] At the hearing, the AWU further contended that its original application for a protected action ballot order utilised a template, which specifies 20 days from the date of the order as the relevant closing date, and that by oversight this default period had not been amended. It also submitted that a refusal by the Commission to extend the period could see AWU members’ votes left in transit in the postal system and unconsidered in the final tally. Against this, it said, no apparent detriment would accrue to GrainCorp if the closing date were put back.

[8] GrainCorp opposed the variation on several bases. First, it submitted that the AWU’s application had not complied with Rule 31(3) of the Fair Work Commission Rules 2013, as it had not attached the order which was sought to be varied. The AWU promptly rectified this.

[9] Secondly, GrainCorp stated that the AEC, which is the ballot agent pursuant to paragraph 2 of the Order, had satisfied itself that all eligible voters had, as of 13 July 2017, received their ballot papers. Reference was made to correspondence with the AEC. However, at the hearing of the application on 20 July 2017, it became clear that in fact the AEC had satisfied itself in relation to another matter, namely that all employees had received a notice from the AEC advising of the upcoming ballot. Further, the AEC had evidently made a mistake in the notice, incorrectly identifying a company representative as the union contact person. A revised notice was sent, and the AEC contacted all members by telephone to advise of the correct contact details of the relevant union official. It does not appear that this error resulted in any significant delay; according to GrainCorp, the error was rectified the same day.

[10] Mr Cameron, who appeared for the AWU via telephone link at the hearing, told the Commission that as of Friday 14 July 2017, he was aware of eight members who had still not received their voting packs. Mr Saunders, who appeared in person for the union, told the Commission that as of the previous evening (19 July 2017), he had spoken to two members who had not received their packs. No evidence was led regarding these matters, however no objection was taken to submissions on these matters being made from the bar table.

[11] GrainCorp further submitted that the time allowed by the Order for the return of the votes, 20 days, was a standard and common turn-around time, including for regional areas, and that it was a sufficient time in the present instance.

[12] As to the school holidays, GrainCorp submitted that the AWU was aware of this at the time it sought the Order, and the Order was made in the terms sought by the union. It further submitted that the holidays were irrelevant, as ballots would be sent to members’ home addresses. It is noted that school holidays between terms 2 and 3 in Victoria, for public schools, ended on 16 July 2017.

[13] GrainCorp submitted that the Commission should satisfy itself from its own enquiries of the AEC as to whether the original timetable set out in the Order cannot reasonably be complied with by the AEC and eligible voters. In this regard, I consider that it is for the applicant, not the Commission, to present its case in support of the variation to the order that it seeks, and to persuade the Commission that it should exercise its discretion to vary the Order.

[14] A further contention of GrainCorp was that the AEC had not made any approach to the Commission to extend the closing date of the vote. The Act makes provision for such an application (s447(2)). It was contended that, in the absence of such an application, the AEC can be presumed to be content with the closing date in the Order. In addition, GrainCorp said there was no evidence of Australia Post downgrading delivery times in rural areas and what if any burden would be associated with this in any event. Finally, GrainCorp contended that there was no compelling reason why AWU members could not return their ballot papers by 25 July 2017.

[15] Shortly before the hearing, GrainCorp advised the Commission that it intended to rely on a decision of Commissioner Asbury (as she then was) in CEPU and others v Ergon and others, 1 in which the Commission refused an application made under s447 to extend the closing date of a ballot by 15 days. In that case, the Commission had earlier ordered that the ballot close 20 days from the date of the Order, however the AEC had closed the ballot after only 18 days. The extension was sought effectively to remedy what was said to be an error on the part of the AEC. The employers raised a jurisdictional objection to the application concerning the question of whether the Commission can direct the AEC in relation to the timetable for conducting the ballot. The Commissioner found that s443(3)(c) requires a ballot order to specify the date by which voting in the ballot closes. It does not require that the order specify the date on which the ballot closes. Accordingly, there was nothing wrong with the AEC closing the ballot 2 days earlier than the outer limit specified in the order, in accordance with the timetable that s449(2) requires the ballot agent to prepare and comply with (see also ss451(2), 449(2)). These matters are not relevant in the present case.

Consideration

[16] Section 447(4) confers a broad discretion on the Commission as to whether to vary an order – the Commission ‘may’ vary the order. Relevant to the exercise of discretion are the requirements in s577 and 578, including that the Commission must perform its functions and exercise its powers in a manner that is fair and just.

[17] I note that s447(3)(a) states that the application to the Commission may be made at any time before the date on which voting closes, which is the case in this matter.

[18] Section 447 allows either an applicant for a protected action ballot order or a ballot agent, such as the AEC, to make an application to the Commission to vary an order. An application by a ballot agent can only seek to vary the order to extend the close date, whereas an application by an applicant for a ballot order is not so constrained.

[19] In my view, the fact that the AEC has not considered it necessary to apply for the variation does not mean or suggest that the Commission should not grant an application by a ballot order applicant. The statute contemplates both kinds of applicants seeking a variation to an order. Each might have good reason to seek a variation. Decisions of the Commission have dealt with applications of both kinds. Each application will turn on its own merits.

[20] In the present case, the ballot is being conducted in regional Victoria, and papers must be sent to various locations, some of which are remote. This is a relevant consideration.

[21] I am not persuaded that the school holiday period is relevant. The holidays are now over. Members’ children are presumably back at school, and members are now no more or less likely to be home and able to consider their ballot papers.

[22] The union’s submission concerning postal delivery times is an adjunct of its argument concerning the geographical dimension of this matter. It is not evident to me that 16 days is likely to be the typical time associated with sending and returning a ballot pack. From the submission made at hearing, I understand that the voting packs are being sent from the AEC’s regional office in Shepparton. Information provided to the Commission by the union in fact suggests to me that estimated delivery times within the same state ‘between country locations’ is 3-4 business days, as opposed to 2-3 business days within metropolitan areas of capital cities, or within the same city or town or an adjacent city or town.

[23] I accept the gist of the AWU argument that a deferral of the date by which the ballot must close would serve the purpose of having members’ votes counted, rather than potentially left in transit and invalid. At the same time, I consider that a variation to a protected ballot order to extend the closing date should go no further than what is warranted, based on the considerations of the particular case. The AWU sought a two week extension. In my opinion, having regard to Australia Post’s estimated postal delivery times referred to above, a period of 5 working days would be appropriate to accommodate the particular geographic circumstances of this case.

[24] Accordingly, having had regard to the requirements of the Act, and to the parties’ contentions, I have decided to vary the Order, so as to insert a new paragraph 4, which shall provide that the protected action ballot is to close 25 working days from the date of the Order.

[25] An order to this effect will be issued separately.

DEPUTY PRESIDENT

Appearances:

Mr D. Cameron for The Australian Workers’ Union

Mr R. Saunders for The Australian Workers’ Union

Mr M. Derrick for The Australian Workers’ Union

Mr A. Umansky for GrainCorp Operations Limited

Mr P. Johnston for GrainCorp Operations Limited

Ms K. Skillen for GrainCorp Operations Limited

Hearing details:

2017

Melbourne:

20 July

 1   [2011] FWA 8475

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