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

[2018] FWC 1511

[2018] FWC 1511

FAIR WORK COMMISSION

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

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