DECISION

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Nilsen (SA) Pty Ltd
(B2018/173)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 14 MARCH 2018

Application to revoke order made in B2018/78

[1] On 13 March 2018 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - SA Branch Electrical and Plumbing Division (CEPU) applied to the Fair Work Commission (the Commission) for an order under section 448 of the Fair Work Act 2009 (FW Act) to revoke a protected action ballot order. The Order sought to be revoked is an order made by the Commission on 7 February 2018 pursuant to section 437 of the FW Act (PR600182) (the Order) and an accompanying decision ([2018] FWC 795). The Order was made on the CEPU’s application. It concerned a group of employees employed by Nilsen (SA) Pty Ltd (the employer) who were covered by the Nilsen (SA) Pty Ltd – Contracting Division Collective Agreement 2013.

[2] Under the terms of the Order the date by which voting in the protected action ballot is to close is 15 March 2018. The Commission ordered that the ballot is to be conducted by the Australian Electoral Commission (AEC).

[3] The grounds on which the application is made is that circumstances have altered since the Order was made. The CEPU advise that an employee ballot on a proposed new Agreement was conducted on 10 March 2018 which resulted in a majority of employees accepting the proposed Agreement. The CEPU advise that the employer, Nilsen (SA) Pty Ltd, intends to make an application to the Commission for approval of the new Agreement. The CEPU further advise that it does not, in these circumstances, have grounds to oppose the approval of the Agreement. It submits that its former intention to proceed with a protected action ballot of relevant employees is now obsolete.

[4] I listed the matter at short notice. I conducted a hearing on the application on 14 March 2018. The employer was notified of proceedings as was the AEC.

[5] The employer did not oppose the revocation of the Order.

[6] The AEC did not appear or make a formal submission. It informally advised my Associate that the results of the protected action ballot had not, at the time the application was made, been declared.

[7] Section 448 of the FW Act provides as follows:

“(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.”

[8] Although administratively the AEC has put in place arrangements for the conduct of and had closed off the ballot, I am satisfied that under the terms of the Order voting did not close until 15 March 2018 and therefore the CEPU application is competent.

[9] Having received a competent application, I am required by section 448(2) of the FW Act to revoke the order. I hereby do so. An Order giving effect to this decision is published. The Order will apply from 3.00pm (ACDT) 14 March 2018.

DEPUTY PRESIDENT

Appearances:

P. Scudds, for the CEPU

R. Lane, for Nilsen (SA) Pty Ltd

Hearing details:

2018.

Adelaide.

14 March 2018.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia against Nilsen (SA) Pty Ltd was brought before the Fair Work Commission. The union sought to revoke an earlier order made in the case B2018/78. The union argued that the original order was flawed and should be set aside, while the respondent, Nilsen (SA) Pty Ltd, contended that the order should be upheld. The legal issues before the court were primarily concerned with the validity and appropriateness of the original order, and whether there were grounds to revoke it. The court had to consider the arguments presented by both parties and determine whether the original order was indeed flawed or if it was justified under the circumstances.

The Fair Work Commission considered the arguments from both the union and the respondent. The union argued that the original order was made without proper consideration of certain evidence and that there were procedural errors in its issuance. Nilsen (SA) Pty Ltd defended the order, asserting that it was made correctly and that there were no grounds for revocation. The court examined the evidence and the procedural fairness of the original decision. The key issue was whether the union had demonstrated that the original order was flawed to a degree that warranted its revocation. The commission also considered the impact of any potential revocation on the parties involved and the broader implications for similar cases.

After reviewing the submissions and evidence, the Fair Work Commission concluded that the union had not established sufficient grounds for revoking the original order. The court found that the original decision was made in accordance with the relevant laws and procedures, and that there were no significant errors or omissions that would justify its revocation. The commission held that the order was valid and should remain in place. The union's application to revoke the order was therefore dismissed. The court's decision was based on a careful assessment of the evidence and the legal standards applicable to the case.

In conclusion, the Fair Work Commission dismissed the union's application to revoke the order made in B2018/78. The court found that the original order was properly made and that there were no valid grounds for its revocation. The decision reaffirms the importance of procedural fairness and the thorough consideration of evidence in employment-related disputes. The order remains in effect, and the union's application was unsuccessful.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Nilsen (SA) 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