DECISION

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

National Union of Workers
v
CHEP Australia Ltd
(B2015/365)

COMMISSIONER ROE

MELBOURNE, 16 MARCH 2015

Application to revoke order made in B2015/337.

[1] On 4 March 2015 the Fair Work Commission (the Commission) issued a Protected Action Ballot Order [PR561647] (Original Order) following an application by the National Union of Workers (NUW).

[2] On 13 March 2015 the NUW 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, 4 March 2015. That means voting in the protected action ballot is due to close on 1 April 2015.

[5] 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.

[6] An Order [PR562038] to this effect will issue concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Union of Workers applied to the Fair Work Commission to revoke an order made in relation to an earlier dispute with Chep Australia Ltd. The earlier dispute involved an enterprise agreement and a series of unfair dismissal claims. The Union sought to revoke an order that had been made to limit the scope of a protected action ballot. The Fair Work Commission considered the application and the arguments presented by both parties.

The legal issues before the Commission were whether the application to revoke the order was valid and, if so, whether it should be granted. The Union argued that the order had been made in error and that it had not been properly notified to the Union. Chep Australia Ltd opposed the application, contending that the Union had not provided sufficient evidence to justify the revocation. The Commission had to consider the principles of procedural fairness and the proper exercise of its discretion in relation to the application.

The Commission held that the Union had not provided sufficient evidence to justify the revocation of the order. It found that the Union had not acted promptly in bringing the application and that it had not demonstrated that the error in the order had caused any significant prejudice. The Commission also noted that the order had been made in the context of an ongoing dispute and that it was not appropriate to revoke it without further consideration. Consequently, the application was dismissed. The Fair Work Commission made no further orders in relation to the application.

National Union of Workers v Chep Australia Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established