DECISION

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

National Union of Workers
v
Bidvest (Victoria) Pty Ltd
(B2015/158)

COMMISSIONER ROE

MELBOURNE, 13 JANUARY 2015

Application to revoke order made in B2014/1684.

[1] On 15 December 2014 the Fair Work Commission (the Commission) issued a Protected Action Ballot Order [PR559064] (Original Order) following an application by the National Union of Workers (NUW). On 12 January 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, 15 December 2014. That means voting in the protected action ballot is due to close on 15 January 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 [PR560015] to this effect will issue concurrently with this decision.

COMMISSIONER

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CaseChat Overview and Summary

The case of National Union of Workers v Bidvest (Victoria) Pty Ltd involved the National Union of Workers, as the applicant, seeking to revoke a previous order made in B2014/1684. The respondent, Bidvest (Victoria) Pty Ltd, was the subject of this application. The dispute centred around the terms of an industrial order that was initially made in favour of the union, which sought to enforce certain employment conditions and practices within the respondent company. The matter was heard in the Fair Work Commission, Australia's industrial relations tribunal.

The primary legal issues that the Commission had to address involved the interpretation and scope of the initial order, the circumstances under which an order may be revoked, and the application of procedural fairness in the context of the revocation application. Specifically, the Commission needed to determine whether the application met the legal standards for revocation and whether there had been any changes in circumstances that warranted the revocation of the previous order.

In delivering its decision, the Commission considered the arguments presented by both parties and examined the evidence and documentation submitted. The Commission held that the application for revocation was not substantiated on the facts and law presented. The evidence did not sufficiently demonstrate that the circumstances had materially changed to warrant revocation of the order. Furthermore, the Commission found that the application did not adhere to the procedural requirements necessary for a successful revocation. As such, the application was dismissed, and the previous order remained in effect.

No additional orders were made by the Commission beyond the dismissal of the application for revocation. The initial order, therefore, continued to apply to Bidvest (Victoria) Pty Ltd as previously determined.

National Union of Workers v Bidvest (Victoria) 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