United Voice v ISS Facility Services Australia Ltd T/A ISS Security

[2016] FWC 8760

[2016] FWC 8760

FAIR WORK COMMISSION

DECISION

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

United Voice
v
ISS Facility Services Australia Ltd T/A ISS Security
(B2016/1265)

COMMISSIONER SPENCER BRISBANE, 6 DECEMBER 2016

Application for a variation of a Protected Action Ballot Order in B2016/1195.

[1] On 1 December 2016, United Voice (the Applicant) lodged an application in the Fair Work Commission (the Commission) against ISS Facility Services Australia Ltd T/A ISS Security (the Respondent) for a variation of a protected action ballot. The Order which is sought to be varied was made on 11 November 2016 (B2016/1195 [PR587455] and later corrected by a Correction Order [PR587470]).

[2] The application is made pursuant to s.447 of the Fair Work Act 2009 (the Act). Section 447 of the Act 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.”

[3] The Applicant sought an extension to the closing date in the Order to 14 December 2016. The Applicant stated in its application that the variation to the Order was sought due to unexpectedly long delivery times by Australia Post for the delivery of postal ballots to its members. The Order (by way of the Correction Order) set out the closing date of the protected action ballot to be 7 December 2016. The application set out that (as at 1 December 2016) approximately 10 members of the Applicant had not received their postal ballot orders. The Applicant stated in its application that:

“6. The Applicant has confirmed that these members were on the list of members provided to the AEC and postal addresses were recorded correctly.
7. The Applicant further suspects that there are a large number of members who have not contacted the Applicant to advise of non-receipt of ballot material.
8. The Applicant contends that unexpectedly long delivery times by Australia Post have contributed to the delay in receiving ballot papers.
9. The delays will have a flow on impact in terms of the ability for the members to return their ballot material by the current closing date.”

[4] On 2 December 2016, an email was forwarded from Chambers to the Respondent asking the Respondent to advise whether they opposed the variation sought by the Applicant.

[5] The Respondent’s response to such was received on 5 December 2016 and stated that it objected to the variation sought by the Applicant.

[6] The Respondent opposed the application on the grounds that the timeframe stipulated in the Order was sufficient and it would prejudice the Respondent due to the peak Christmas travelling period as the Respondent is a provider of aviation security services and required “clarity as to the outcome of the ballot as soon as possible”.

[7] The Applicant provided an urgent response to the objections raised by the Respondent. Relevantly, the Applicant submitted in its email to Chambers that the Respondent’s alleged prejudice “is of no relevance in the present proceedings” and that the Respondent had had the opportunity “to seek a longer notice period when the Protected Action Ballot Order was made” (pursuant to s.414(2)(b) of the Act), and did not do so.

[8] Taking into consideration the above matters, the Commission is satisfied that the requirements of s.447 of the Act have been met and the Protected Action Ballot Order should be varied. An application has been made by the Applicant for the Protected Action Ballot Order, pursuant to s.447(1) of the Act. The application was made prior to the date on which voting in the protected action ballot closes pursuant to s.447(3)(a) of the Act. Accordingly, the Protected Action Ballot Order will be varied to extend the timeframe for the closing date of the vote in the protected action ballot to 14 December 2016.

[9] The Order [PR588268] will be issued concurrently with this Decision.

COMMISSIONER

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