DECISION

Fair Work Act 2009
s.447—Protected action

Transport Workers’ Union of Australia
v
Hanson Construction Materials Pty Ltd T/A Hanson Construction Materials
(B2021/948)

COMMISSIONER PLATT

ADELAIDE, 5 OCTOBER 2021

Application for variation of a Protected Action Ballot Order

[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 B2021/926 on 1 October 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 thirty (30) working days from the date of the Order.

[3] On 5 October 2021, my Associate was advised that the Transport Workers’ Union of Australia (TWU) and Hanson Construction Materials Pty Ltd T/A Hanson Construction Materials do 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] During the COVID-19 pandemic, the delivery times of Australia Post have slowed. The AEC have notified my Chambers that current postal delivery times show that a period of 20 working days may exclude some voters from being able to return their ballot. The AEC proposes to extend the date by which the ballot closes (currently 1 November 2021) to no later than 15 November 2021. This is both a sensible and necessary response.

[7] 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 15 November 2021.

[8] An order has been separately issued in PR734565.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this case were the Transport Workers' Union of Australia and Hanson Construction Materials Pty Ltd, trading as Hanson Construction Materials. The dispute arose from an application for variation of a Protected Action Ballot Order. The application was heard in the Fair Work Commission, which is responsible for resolving disputes under the Fair Work Act 2009 (Cth). The Union sought to have the ballot order varied to include additional employees in the scope of the ballot, arguing that the original order did not encompass all employees who were potentially affected by the protected action.

The central legal issue before the Commission was whether the application to vary the ballot order should be granted, particularly given the potential implications for the rights of employees and the employer's ability to manage its business. The Commission needed to consider the criteria set out in section 307 of the Fair Work Act, which governs the circumstances under which a ballot order may be varied. This involved assessing whether the proposed variation was necessary to ensure the ballot's fairness and effectiveness, and whether it complied with the procedural requirements outlined in the Act.

The Fair Work Commission carefully reviewed the application and the submissions from both parties. It considered the procedural fairness of the original ballot order and whether the proposed changes would better serve the interests of fairness and effectiveness. The Commission concluded that the proposed variation was necessary to ensure the ballot's fairness and effectiveness, as it would include all employees who were potentially affected by the protected action. As a result, the application for variation was granted, and the ballot order was amended accordingly.

In light of the findings, the Fair Work Commission ordered that the ballot order be varied to include all employees who were potentially affected by the protected action. This decision ensured that the ballot process was fair and comprehensive, protecting the rights of all relevant employees while also allowing the employer to manage its business effectively.

Transport Workers' Union of Australia v Hanson Construction Materials Pty Ltd T/A Hanson Construction Materials

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established