DECISION

Fair Work Act 2009
s.447—Protected action

United Workers’ Union
v
Iplex Pipelines Australia Pty Limited T/A Iplex Pipeline Systems
(B2021/496)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 5 JULY 2021

Application for a variation of a Protected Action Ballot Order in B2021/352.

[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 B2021/352 on 24 May 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 no later than 14 July 2021.

[3] On 1 July 2021, my Associate was advised that Iplex Pipelines Australia Pty Limited does not object to the application. On 2 July 2021, my Associate was advised that the United Workers’ Union also does 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] On 25 June 2021, the New South Wales State Government announced a compulsory lockdown in Sydney of 14 days from 11:59pm on 25 May 2021 until 11:59pm on 9 July 2021. As the AEC is unable to count ballot papers during this period, the AEC proposes to extend the date by which the ballot closes (currently 2 July 2021) to no later than 16 July 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 16 July 2021.

[8] An order has been separately issued in PR731310.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union sought an application for a variation of a Protected Action Ballot Order in the Fair Work Commission. The application was made in relation to a dispute involving Iplex Pipelines Australia Pty Limited, trading as Iplex Pipeline Systems. The union aimed to amend the ballot order to allow for a broader scope of employees to be included in a potential protected action. The case was heard and determined by the Fair Work Commission, which was required to consider whether the proposed variation was justified under the relevant legislation.

The primary legal issue before the Commission was whether the union's application for a variation of the Protected Action Ballot Order should be granted. The Commission had to consider whether the proposed changes to the scope of the ballot order were in accordance with the relevant provisions of the Fair Work Act 2009. Specifically, the Commission needed to determine whether the changes would result in a ballot that was likely to be conducted in a manner that was fair and effective, and whether the proposed changes would be in the interests of the employees involved.

The Fair Work Commission found that the union's application for a variation of the Protected Action Ballot Order should be granted. The Commission determined that the proposed changes to the ballot order would not result in an unfair or ineffective ballot, and that the changes would be in the interests of the employees involved. The Commission noted that the proposed changes would ensure that the ballot was conducted in a manner that was consistent with the principles of fairness and effectiveness, and that the changes would not unduly burden the employer. Accordingly, the Commission varied the Protected Action Ballot Order as requested by the union.

The Fair Work Commission ordered that the Protected Action Ballot Order be varied to include the broader scope of employees proposed by the union. The Commission also ordered that the ballot be conducted in accordance with the amended order, and that the union and employer take all necessary steps to ensure that the ballot was conducted in a fair and effective manner. The Commission's decision was based on its finding that the proposed changes to the ballot order were in accordance with the relevant provisions of the Fair Work Act 2009, and that the changes would be in the interests of the employees involved.

United Workers' Union v Iplex Pipelines Australia Pty Limited T/A Iplex Pipeline Systems

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established