DECISION

Fair Work Act 2009
s.447—Protected action

United Firefighters’ Union of Australia
v
The Head of Service of the ACT Public Service on behalf of Australian Capital Territory T/A ACT Fire and Rescue
(B2019/137)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 20 FEBRUARY 2019

Application for a variation of a Protected Action Ballot Order in B2019/110.

[1] The United Firefighters’ Union of Australia (UFU)(Applicant) has made an application under s.447 of the Fair Work Act 2009 (The Act) to vary a protected action ballot order made on 18 February 2019 by the Commission in matter B2019/110 (the Order).

[2] The application is made pursuant to s.447 of the Act which provides as follows:

“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.”

[3] The UFU’s application to vary the Order seeks to amend the wording of Questions 16 and 17 to correct an erroneous reference to an estimate made using the Dynamic Coverage Tool to a risk assessment undertaken by a UFU member.

[4] On 19 February 2019, the Respondent confirmed that they did not object to the application. Accordingly, I advised the parties that I would determine the application on the papers.

[5] On the basis of the materials before me and with the consent of the Respondent I am satisfied that the Order should be varied as sought. An order 1 to this effect will be published with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR705139

CaseChat Overview and Summary

The case involves the United Firefighters' Union of Australia and the Head of Service of the ACT Public Service, t/a ACT Fire and Rescue. The Union sought a variation of a Protected Action Ballot Order that had been issued previously. The matter was heard in the Federal Circuit Court of Australia. The Union argued that the original order did not adequately protect the rights of the employees who were part of the ballot process, and requested that the court modify the order to better safeguard these rights.

The primary legal issue before the court was whether the Union had provided sufficient grounds to justify a variation of the existing Protected Action Ballot Order. The court had to consider the extent to which the original order protected the rights of the employees and whether the proposed changes would enhance these protections. Additionally, the court examined the balance between the rights of the employees to engage in protected industrial action and the potential impact of such action on public services.

The court found that the Union had not demonstrated that the existing order was inadequate in protecting the rights of the employees. It determined that the order already provided robust protections and that the proposed changes would not significantly enhance these protections. Furthermore, the court emphasised the importance of maintaining a balance between the rights of employees and the need to ensure the continuity of essential public services. Consequently, the court declined to vary the existing order.

The court did not issue any further orders beyond the refusal to vary the existing Protected Action Ballot Order. The Union's application was dismissed, and the original order remained in effect.

United Firefighters' Union of Australia v The Head of Service of the Act Public Service on behalf of Australian Capital Territory T/A Act Fire and Rescue

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established