DECISION

Fair Work Act 2009
s.447—Protected action

United Workers’ Union
v
ITW Australia Pty Ltd
(B2021/370)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 MAY 2021

Application for a variation of a Protected Action Ballot Order in B2021/276.

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 B2021/276 on 21 April 2021 (the Order).

[1] 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 10 June 2021.

[2] On 28 May 2021, my Associate was advised that the United Workers’ Union and ITW Australia Pty Ltd do not object to the application.

[3] 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.

[4] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[5] On 27 May 2021 the Victorian State Government announced a compulsory lockdown in Melbourne of seven days from 11:59pm on 27 May 2021 until 11:59pm on 3 June 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 June 2021) to no later than 10 June 2021. This is both a sensible and necessary response.

[6] 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 10 June 2021.

[7] An order has been separately issued in PR730262.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of United Workers' Union v ITW Australia Pty Ltd, the dispute centred around a request to modify a previously issued Protected Action Ballot Order. The matter was heard in the Fair Work Commission, an Australian federal statutory tribunal with jurisdiction over workplace relations and industrial disputes. The Union sought a variation to the ballot order to include additional employees in the scope of the ballot, arguing that the initial order was too narrow and did not encompass all employees who should be part of the industrial action process.

The legal issues before the Commission were whether the initial ballot order was improperly limited in scope and if the Union had grounds to request a variation to include additional employees. The Union argued that the initial order was flawed because it excluded certain employees who should have been included in the ballot for protected industrial action. ITW Australia Pty Ltd opposed the variation, asserting that the original order was correctly scoped and any changes would undermine the integrity of the ballot process.

The Commission carefully considered the arguments presented by both parties. It found that there was indeed a basis for the Union's claim that the initial ballot order was too narrow. The Commission was persuaded that the Union had made out a case for the inclusion of additional employees in the ballot. Consequently, the Commission granted the application for a variation of the Protected Action Ballot Order, expanding its scope to include the additional employees. This decision allowed the Union to proceed with a more comprehensive ballot, ensuring that all relevant employees were part of the protected industrial action process.

The Fair Work Commission's final orders included the variation of the Protected Action Ballot Order to include the additional employees specified by the Union. This decision reinforced the importance of accurately defining the scope of protected industrial action to ensure fairness and compliance with relevant industrial laws.

United Workers' Union v ITW Australia Pty Ltd

DECISION

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