“It’s not about the convenience of the Commission”-  PABO timing must be expeditious and practicable. 

Fair Work Commission (FWC) Deputy President Hampton’s observations in this case demonstrated the FWC’s commitment to expedience while providing clarity on the acceptable timeframe for conducting protected action ballots – a matter that has seen contention between unions and employers. 

Key Takeaways: 

The FWC accepted that an eight-working-day period for the completion of the protected action ballot was adequate, despite the employer’s request for a ten-day timeframe. 

Circumstances of each particular case will be determine what is reasonably practicable, however there is no hard and fast rule for a ten-day minimum timeframe for a Protected Action Ballot to commence after the making of a PABO. 

Case Summary  

The applicants, the Construction Forestry and Maritime Employees Union (CFMEU) and the Australian Manufacturing Workers’ Union (AMWU), sought a shorter time period for the ballot to close five working days after the commencement of the ballot. This request was, in effect, for a period of approximately eight working days from the commencement of the order, accounting for a mandatory three-working-day wait after the order’s issuance before the ballot could start. This proposal aimed to finalize the ballot as expeditiously as practicable while ensuring that all necessary procedural requirements were met. 

The unions emphasized the importance of conducting the ballot quickly to avoid unnecessary delays in the bargaining process and to facilitate timely resolution of the matters at hand. They argued that an expedited ballot would not compromise the ability of the parties to participate fully in the subsequent compulsory conciliation conference or to prepare adequately for negotiations. The CFMEU also pointed out that the reasons given in a previous decision (CEPU v Nilsen Pty Ltd [2023]) cited by SIMPEC did not establish a minimum ballot period and that the Commission should balance the need for speed with the participation rights of all bargaining representatives. This approach underlined the unions’ belief that the bargaining process would benefit from a prompt conclusion of the ballot, allowing both parties to focus on substantive negotiations towards a new enterprise agreement. 

The respondent, SIMPEC Pty Ltd, argued for a longer duration, specifically a 10-day period for the protected action ballot. SIMPEC justified its stance by citing concerns about adequate preparation time for the compulsory conciliation conference scheduled to follow the ballot. They also referred to a previous Fair Work Commission decision, suggesting that a 10-day period had been established as a minimum requirement in a similar context. This argument was part of SIMPEC’s broader strategy to ensure that all procedural and preparation aspects of the process were adequately addressed, aligning with their interpretation of fair and practical implementation of the ballot process. 

However, Deputy President Peter Hampton, upon reviewing the circumstances and submissions from both parties, determined that an eight-day period for the ballot, as proposed by the unions, was sufficient. This decision was guided by the principle of conducting the ballot “as expeditiously as practicable,” emphasizing a balance between procedural fairness and the efficiency of the bargaining process. 

In his reasons, DP Hampton canvassed the following key issues: 

  1. Consideration of the Full Bench Decision in CEPU v Nilsen: Hampton referenced the Nilsen decision to highlight that it did not establish a minimum 10-working day period for electronic voting as argued by SIMPEC. Instead, it emphasized the need for ballots to be conducted “as expeditiously as practicable,” considering the circumstances of each case. 
  1. Expediency and Practicality: The importance of conducting the ballot expediently and practically, considering the specific situation and needs of the parties involved. The Deputy President aimed to balance the urgency of concluding the ballot with the ability of all parties to participate effectively in the process. 
  1. Adequacy of Preparation for Compulsory Conciliation Conference: Despite SIMPEC’s concern about having insufficient time to prepare for the conciliation conference if the ballot period were shortened, Hampton determined that an eight-day ballot period would not prevent the parties from preparing adequately. This conclusion considered the parties’ prior engagements and the nature of the issues to be discussed. 
  1. Legal and Procedural Framework: The decision was framed within the legal and procedural framework of the Fair Work Act, specifically section 443(3)(c), which mandates that the ballot be conducted as expeditiously as practicable. This legal basis supported a decision to approve a shorter, eight-day ballot period over the ten days requested by SIMPEC. 
  1. No Preset Minimum Period: The ruling clarified that there is no preset minimum period for conducting a protected action ballot. This flexibility allows the Fair Work Commission to make decisions based on the unique circumstances of each case, rather than adhering strictly to precedent or a fixed period. 

By focusing on these considerations, Deputy President Hampton aimed to facilitate a fair and efficient process for conducting the protected action ballot, ensuring that all legal requirements were met while also considering the practical needs and constraints of the parties involved.