DECISION

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

National Union of Workers
v
Bidvest Melbourne Pty Ltd
(B2015/1481)

COMMISSIONER ROE

MELBOURNE, 21 OCTOBER 2015

Application for revocation of ballot B2015/1437 - Bidvest Melbourne Pty Ltd.

[1] On 8 October 2015 the Fair Work Commission (the Commission) issued a Protected Action Ballot Order [PR572735] (Original Order) following an application by the National Union of Workers (NUW). On 20 October 2015 the NUW made an application to revoke the Original Order.

[2] Section 448 of the Fair Work Act 2009 (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.”

[3] 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, 8 October 2015. That means voting in the protected action ballot is due to close on 5 November 2015.

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

[5] An Order [PR573125] to this effect will issue concurrently with this decision.

COMMISSIONER

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CaseChat Overview and Summary

The National Union of Workers sought to revoke a ballot in the Fair Work Commission, with the application being against Bidvest Melbourne Pty Ltd. The ballot, numbered B2015/1437, pertained to an industrial action involving the workers. The Commission was tasked with determining whether the application should proceed and, if so, under what conditions. The dispute centred around whether the ballot was conducted appropriately and whether the union had the right to revoke it.

The primary legal issue before the Commission was whether the union had grounds to revoke the ballot, considering the procedural fairness and the rights of the workers. The Commission also needed to consider the implications of the revocation on the workers and the employer, as well as the broader industrial relations landscape. The arguments presented by both parties focused on the adherence to procedural fairness and the validity of the union’s actions in seeking to revoke the ballot.

In its decision, the Commission examined the procedural fairness of the ballot process and the union’s authority to revoke the ballot. The Commission found that the ballot was conducted in a manner that was procedurally fair and that the union had not demonstrated a valid reason to revoke the ballot. The decision underscored the importance of adhering to industrial action protocols and the need for unions to act within their legal rights. Consequently, the application for revocation was dismissed. The Commission also noted the potential impact on industrial relations if such applications were to be granted lightly, emphasising the need for a balanced approach.

National Union of Workers v Bidvest Melbourne 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