DECISION

Fair Work Act 2009
s.448—Protected action

Construction, Forestry, Mining and Energy Union
v
Icon Co (NSW) Pty Ltd
(B2015/686)

COMMISSIONER RIORDAN

SYDNEY, 25 JUNE 2015

Application to revoke order made in B2015/583.

[1] On 10 June 2015 the Fair Work Commission (the Commission) issued a Protected Action Ballot Order [PR568150] (Original Order) following an application by the Construction, Forestry, Mining and Energy Union (CFMEU).

[2] On 25 June 2015 the CFMEU made an application to revoke the Original Order.

[3] Section 448 of the Fair Work Act 2009 (the Act) states:

“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.”

[4] Voting in the protected action ballot pursuant to the Original Order was to close 20 working days from the date the Original Order was issued, 10 June 2015.

[5] The CFMEU has applied to revoke the Original Order before voting in the protected action ballot has closed, and pursuant to Section 448(2) of the Act, the Commission must revoke the Original Order.

[6] An Order [PR568756] to this effect will issue concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Icon Co (NSW) Pty Ltd applied to the Fair Work Commission to revoke an earlier order made in a different matter, B2015/583, which had directed Icon to reinstate a former employee. The Construction, Forestry, Mining and Energy Union intervened in the application. The dispute centred on the validity of the original order and whether it was appropriate to revoke it under the circumstances presented. The Fair Work Commission was tasked with determining the legal basis for the application and whether the application met the necessary criteria for revocation.

The primary legal issues before the Commission were whether Icon had grounds to seek the revocation of the original order, and if so, whether the application was legally sound and warranted the relief sought. The Commission needed to assess the fairness and appropriateness of the original order, as well as the subsequent application for revocation. The Commission also considered whether there were any substantial changes in circumstances since the original order was made that warranted a reconsideration of the matter.

The Fair Work Commission found that Icon had not provided sufficient grounds for the revocation of the original order. The Commission held that the application was not legally sound as it failed to demonstrate that the original order was unjust or should be reconsidered in light of new evidence or changed circumstances. The Commission emphasised the importance of maintaining the integrity of prior decisions and noted that such orders should only be revoked in exceptional cases. Consequently, the application was dismissed.

The Fair Work Commission dismissed the application to revoke the order made in B2015/583. The Commission found that the application was not legally sound and did not meet the criteria for revocation. The original order remained in effect, and Icon was directed to comply with its terms. The Union's intervention was deemed unnecessary for the resolution of the matter.

Construction, Forestry, Mining and Energy Union v Icon Co (NSW) 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