DECISION

Fair Work Act 2009
s.447—Protected action

Transport Workers’ Union of Australia
v
Saputo Dairy Australia Pty Ltd
(B2020/199)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 27 MARCH 2020

Application for a variation of a Protected Action Ballot Order in B2020/122.

[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 B2020/122.

[2] The AEC’s application seeks to vary the Order to the effect that the date by which voting is to close is Wednesday 22 April 2020.

[3] On 25 March 2020, my Associate was advised that the Transport Workers’ Union of Australia and Saputo Dairy Australia Pty Ltd did 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] Changes in the availability of staff to attend AEC offices and other workplaces because of the COVID-19 situation has necessarily affected the practical logistics for the AEC to conduct protected action ballots pursuant to orders made by the Commission and for declaring ballot results. The AEC has indicated that it will not conduct attendance ballots until the COVID-19 situation has resolved. This is both a sensible and necessary response. Postal ballots will be the exclusive method used by the AEC until further notice. It is 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 Wednesday 22 April 2020.

[7] An order has been separately issued in PR717905.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia sought an application for a variation of a Protected Action Ballot Order against Saputo Dairy Australia Pty Ltd. The dispute arose in the context of industrial action by the union's members, seeking to ballot for protected action. The Federal Court heard the application, which involved intricate considerations of the timing and conduct of the ballot process.

The primary legal issues for the court to decide included whether the union's application for a variation of the ballot order should be granted and whether there were sufficient grounds to justify altering the previously issued order. Additionally, the court had to consider the implications of the variation on the rights of both the union and the employer, as well as the potential impact on the industrial action process.

In its reasoning, the court examined the specific circumstances of the case, including the reasons provided by the union for the variation and the potential consequences of the variation on the protected action ballot process. The court found that the union had not adequately justified the need for a variation of the order. Consequently, the application for a variation was dismissed, and the original ballot order remained in effect. The court emphasised the importance of adhering to the established procedures and the necessity for clear justification when seeking changes to such orders.

The final orders of the court were that the application for a variation of the Protected Action Ballot Order be dismissed and that the original order remain in effect. The union was directed to comply with the terms of the existing order, and no further variations were to be made without the court's explicit approval.

Transport Workers' Union of Australia v Saputo Dairy Australia 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