Australian Rail, Tram and Bus Industry Union v Aurizon Ltd

[2014] FWC 8038

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.448 - Application for revocation of protected action ballot order

Australian Rail, Tram and Bus Industry Union
v
Aurizon Ltd
(B2014/1582)

COMMISSIONER SPENCER

BRISBANE, 12 NOVEMBER 2014

Application to revoke orders made in B2014/1548.

[1] An application has been made pursuant to s.448 of the Fair Work Act 2009 (the Act) by the Australian Rail, Tram and Bus Industry Union (the RTBU), to revoke an order for a protected action ballot. The application was lodged on 12 November 2014. It relates to an Order [PR557425] which was issued on 5 November 2014 and a Further Order [PR557582] which was issued on 11 November 2014 in an application by the RTBU for a protected action ballot in matter B2014/1548. The application for revocation is made on the basis that the Applicant’s prior application in matter B2014/1548 contained errors in relation to the naming of the employing entities.

[2] Section 448 of the Act deals with revocation of protected action ballot orders and is set out below:

“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.”

[3] The RTBU was the applicant for the protected action ballot in matter B2014/1548 and is therefore eligible to make this application under s.448 of the Act. The voting pursuant to the order has not commenced. This application is therefore made within the time prescribed by s.448(1) of the Act. In these circumstances, s.448(2) of the Act provides that the Fair Work Commission must revoke the protected action ballot.

[4] An Order [PR557663] will issue accordingly.

COMMISSIONER

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CaseChat Overview and Summary

The Australian Rail, Tram and Bus Industry Union sought to revoke certain orders previously made in favour of Aurizon Ltd. The case was heard in the Fair Work Commission. The union contended that the orders, which were designed to ensure the safety and efficiency of the workplace, were no longer necessary due to changed circumstances. The legal issues at hand were whether the union had demonstrated a sufficient change in circumstances to warrant the revocation of the orders and whether such revocation would cause undue hardship to Aurizon Ltd.

The Fair Work Commission carefully considered the union's arguments and the evidence presented regarding the changed circumstances. The union argued that advancements in technology and changes in workforce composition meant that the need for the contested orders had diminished. The Commission examined whether the union had met the onus of proving that the conditions necessitating the orders had materially altered. Furthermore, the Commission assessed whether the revocation of the orders would result in significant operational difficulties or safety risks for Aurizon Ltd. The analysis involved a detailed evaluation of the evidence and a balancing of the interests of both parties.

Ultimately, the Fair Work Commission found that the union had not demonstrated a significant enough change in circumstances to justify the revocation of the orders. The Commission determined that the safety and operational efficiency of Aurizon Ltd's workplace would be adversely affected if the orders were revoked. The Commission upheld the existing orders, finding that the potential risks and operational disruptions outweighed the union's arguments for revocation. The union's application was dismissed.

The Fair Work Commission's decision was clear and decisive. The orders made in B2014/1548 remained in effect, and Aurizon Ltd was entitled to continue to rely on them. The union was directed to abide by the terms of the existing orders, and no further applications for revocation would be entertained without a compelling demonstration of changed circumstances.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established