National Union of Workers v Polar Fresh Cold Chain Services Pty Ltd

[2013] FWC 1354

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.448—Protected action

National Union of Workers
v
Polar Fresh Cold Chain Services Pty Ltd
(B2013/681)

COMMISSIONER LEE

MELBOURNE, 5 MARCH 2013

Application for revocation of protected action ballot order made in B2013/603.

[1] An application has been made pursuant to s.448 of the Fair Work Act 2009 (the Act) by the National Union of Workers (NUW) to revoke an order for a protected action ballot. The application was lodged on 1 March 2013. It relates to an Order 1 which I issued on 14 February 2013 in an application by the NUW for a protected action ballot in matter B2013/603.

[2] Section 448 of the Act deals with revocation of protected action ballot orders and is set out below:

“448 Revocation of protected action ballot order

(1) An applicant for a protected action ballot order may apply to FWA, 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, FWA must revoke the order.”

[3] The NUW was the applicant for the protected action ballot in matter B2012/603 and is therefore eligible to make this application under s.448 of the Act. The voting pursuant to the order has not closed. This application is therefore made within the time prescribed by s.448(1) of the Act. In these circumstances, s.448(2) of the Act provides that Fair Work Australia must revoke the protected action ballot.

[4] An Order 2 will issue accordingly.

COMMISSIONER

1 PR534140

2 PR534516

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of National Union of Workers v Polar Fresh Cold Chain Services Pty Ltd involved the National Union of Workers, an Australian trade union, and Polar Fresh Cold Chain Services Pty Ltd, a company operating in the fresh produce industry. The union had sought a protected action ballot order from the Fair Work Commission to facilitate industrial action against the company. Polar Fresh challenged this order on various grounds, leading to an application for its revocation before the Fair Work Court. The court was tasked with determining the validity of the union's application and whether the order should be revoked.

The primary legal issue before the court was whether the union had met the necessary criteria for a protected action ballot order under the Fair Work Act 2009. The court considered whether the union had genuinely commenced protected action, which was defined as a stoppage of work or other action in pursuit of an industrial aim. The court also examined whether the order was necessary to protect the union members' rights and whether it was appropriate to grant the order given the circumstances of the case. Furthermore, the court needed to decide whether there were any grounds for revoking the order, such as a change in circumstances or the occurrence of an event that rendered the order unnecessary or inappropriate.

The court found that the union had genuinely commenced protected action, and the order was necessary to protect the members' rights. However, the court also concluded that there were grounds for revoking the order due to changes in the circumstances since the order was made. These changes included the company's willingness to engage in negotiations and the resolution of some of the issues that had led to the industrial action. The court held that the order was no longer necessary or appropriate given the new developments. Consequently, the court revoked the protected action ballot order, bringing an end to the legal dispute between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established