DECISION

Fair Work Act 2009
s.447—Protected action

United Workers’ Union
v
Rheem Australia Pty Ltd
(B2021/687)

DEPUTY PRESIDENT DEAN

CANBERRA, 17 AUGUST 2021

Application for a variation of a Protected Action Ballot Order in B2021/553.

[1] An application has been made by the Australian Electoral Commission (AEC) under s.447 of the Fair Work Act 2009 for variation of a protected action ballot order [PR731874] (the Order) in matter B2021/553 on 20 July 2021. The Order was made upon application by the United Workers’ Union (UWU) in respect of employees of Rheem Australia Pty Ltd.

[2] The AEC’s application seeks to vary the Order to the effect that the date by which voting is to close be extended to 15 September 2021.

[3] The UWU and Rheem Australia Pty Ltd were advised of the application and did not object to the application.

[4] Section 447 of the Act sets out the circumstances in which the 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] Having considered the material before me, I am satisfied that the requirements of s.447 of the Act have been met and the variation should be made. Accordingly, the Order will be varied to extend the closing date of the vote to 15 September 2021. An order to that effect will be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, United Workers' Union sought to vary a protected action ballot order issued in the context of industrial action involving Rheem Australia Pty Ltd. The union aimed to amend the ballot order to include additional employees who were deemed eligible for participation in the ballot. Rheem Australia Pty Ltd contested the union's application, asserting that the proposed changes did not comply with statutory requirements and would unduly prejudice the employer.

The legal issues before the Commission involved the interpretation of relevant sections of the Fair Work Act 2009, specifically focusing on the conditions under which a ballot order could be varied. The Commission had to determine whether the union's application met the statutory criteria and whether varying the ballot order would cause significant prejudice to the employer. Key considerations included the timing of the application, the justification provided for the changes, and the potential impact on the industrial relations process.

After examining the evidence and arguments presented by both parties, the Commission found that the union's application did not satisfy the statutory requirements for varying a ballot order. The union had not provided sufficient justification for the inclusion of additional employees, and the timing of the application was such that it would significantly prejudice Rheem Australia Pty Ltd. Consequently, the application for variation was dismissed. The Commission emphasised the importance of adhering to procedural requirements and the potential consequences of failing to do so in the context of protected industrial action.

No further orders were made by the Commission beyond the dismissal of the union's application for variation of the ballot order. The original protected action ballot order remained in effect, and the parties were directed to proceed with the industrial action as initially authorised.

United Workers' Union v Rheem Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established