Application by Transport Workers’ Union of Australia Summary

[2023] FWC 3047

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.448—Protected action

Application by Transport Workers’ Union of Australia

(B2023/1154)
(B2023/1279)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 20 NOVEMBER 2023

Application for a revocation of a Protected Action Ballot Order in B2023/1154 - Revocation of s. 448A Order

A protected action ballot order was issued on 2 November 2023.[1] The date by which voting in the protected action ballot is to close is 4 December 2023.

The Transport Workers’ Union (TWU), being the applicant in this matter, has made an application under s.448 of the Fair Work Act 2009 (the Act) to revoke the order.

Section 448 of the Act provides that:

448 Revocation of protected action ballot order
(1)An applicant for a protected action ballot order may apply to the FWC, at any time before voting in the protected action ballot closes, to revoke the order.
(2)If an application to revoke a protected action ballot order is made, the FWC must revoke the order.

The requirements of s.448 have been met and the Commission is obliged to revoke the order.

The protected action ballot order made in matter B2023/1154 is hereby revoked. Accordingly, the order made on 2 November 2023 pursuant to s. 448A of the FW Act requiring the bargaining representatives to attend a conference on 21 November 2023 is also revoked.

DEPUTY PRESIDENT

[1] PR767925

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia applied to the Fair Work Commission for the revocation of a protected action ballot order. The order, issued on 2 November 2023, mandated that a protected action ballot close on 4 December 2023. The union sought revocation under section 448 of the Fair Work Act 2009. This section allows an applicant to request the revocation of a protected action ballot order at any time before voting concludes, with the requirement that the Fair Work Commission must revoke the order if such an application is made.

The court's role was to determine whether the requirements of section 448 were satisfied to allow for the revocation of the ballot order. Given that the union's application was made before the voting period ended and met the statutory criteria, the court found that it was obliged to revoke the order. The legal issue thus centred on the interpretation and application of section 448 of the Fair Work Act, specifically whether the timing and form of the application complied with the statutory prerequisites for revocation.

The Deputy President concluded that the union's application complied with the requirements of section 448, thereby obligating the Commission to revoke the protected action ballot order. The court noted that the application was made before the voting period ended, satisfying the temporal condition of section 448(1). The Deputy President also confirmed that all procedural aspects of the application were in order, leaving no basis to deny the union's request. Consequently, the court revoked the ballot order issued on 2 November 2023 and the associated requirement for a conference on 21 November 2023. This decision was made pursuant to section 448(2) of the Act, which mandates revocation upon the making of a valid application.

Application by Transport Workers’ Union of Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established