United Workers' Union v Castrol Australia Pty Ltd

[2024] FWC 2037

[2024] FWC 2037

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.447 - Application for variation of protected action ballot order

United Workers' Union
v

Castrol Australia Pty Ltd

(B2024/944)

DEPUTY PRESIDENT COLMAN MELBOURNE, 31 JULY 2024

Application for a variation of a protected action ballot order in B2024/927

1. The United Workers Union (UWU) has made an application under s 447 of the Fair Work Act 2009 (Act) to vary a protected action ballot order issued by Hampton DP on 24 July 2024 (PR777446). The application is opposed by Castrol Australia Pty Ltd (Castrol). The positions of the parties are set out in correspondence to the Commission. At a conference earlier this afternoon, I heard from the parties briefly in relation to the matter. Their submissions were in line with the reasons cited in their correspondence.

1. Section 447 states that if an application is made under s 447(1) or (2), the Commission may vary a protected action ballot order. This confers a broad discretion. The variation sought by the UWU was for the date by which voting must close to be changed from 13 August 2024 to 8 August 2024. Castrol opposed the variation on the basis that a shortened timetable would adversely impact its preparations to deal with the potential effects of protected industrial action.

1. I have decided to vary the order to replace references to ‘13 August 2024’, which appear in paragraphs 4 and 6.2.2,  with ‘8 August 2024’. I am not persuaded that there is any prejudice to Castrol. Although it explained in general terms the way in which a shorter timetable might affect its planning for industrial action, no details of this impact were provided. For its part, the UWU said that it had intended for the ballot to be open for five working days. Evidently, it wants the vote to be conducted on a shorter timetable. The ballot agent has advised the UWU that this is possible. The UWU further submitted that its application to vary the ballot order was made on the same day that the order was issued, and Castrol had therefore been on notice of the change that the UWU sought to make to the order.

1. I asked the UWU whether a variation was necessary. The order as made specified the date by which the voting in the protected action ballot closes, not the date on which it must close. This was in accordance with s 443(3)(c), which requires an order to specify the date by which voting in the protected action ballot closes. At least on one view, the original order would permit the ballot agent to conclude the vote before 13 August 2024: a vote concluding on 8 August 2024 is also one that has concluded by 13 August. Nevertheless, the UWU, and apparently the ballot agent, wish for the matter to be clarified. In my view it is appropriate to vary the order, either to clarify that the vote may conclude on 8 August 2024 in accordance with the original order, or on the alternative view to alter the effect of the order to permit the vote to conclude on this date.

1. The order is varied according.   

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR777733>