DECISION

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

National Union of Workers
v
Staples Australia Pty Ltd
(B2016/664)

DEPUTY PRESIDENT BULL

SYDNEY, 27 JUNE 2016

Application to revoke protected action ballot order made in B2016/614[PR581513]

[1] The National Union of Workers (NUW) has filed an application under s.448 of the Fair Work Act 2009 (the Act) to revoke a protected action ballot order [PR581513] (the s.437 Order) issued on 14 June 2016.

[2] The s.437 Order was issued at the request of the NUW for certain employees of Staples Australia Pty Ltd (Staples).

[3] Under the s.437 Order, the date for which voting closes in the protected action ballot is twenty (20) working days from the date the order was made, having been made on 14 June 2016.

Relevant Legislation

[4] Section 448 of the Act states that if an application to revoke a protected action ballot order is made, the Commission must revoke the order:

“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.”

Consideration

[5] The NUW, being the applicant in the s.437 Order has standing to bring this application.

[6] The time for voting in the ballot has not yet expired.

[7] Accordingly, pursuant to s.448(2) of the Act, upon request from the applicant for a protected action ballot order, the Commission must revoke the s.437 Order.

Decision

[8] Pursuant to s.448 of the Act and upon the application by the NUW, the Order of the Fair Work Commission dated 14 June 2016 [PR581513] is hereby revoked. An Order [PR582116] revoking the protected action ballot order [PR581513] is issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of National Union of Workers v Staples Australia Pty Ltd arose in the Fair Work Commission, where the union sought to conduct a protected action ballot. The employer, Staples Australia Pty Ltd, applied for the order to be revoked. The dispute centred around the legitimacy and timing of the ballot, which the employer argued was not aligned with the necessary procedural requirements set out under the Fair Work Act 2009.

The legal issues before the Commission involved the interpretation and application of the provisions of the Act regarding protected industrial action and the procedural fairness in initiating such action. Specifically, the court had to consider whether the union complied with the legislative requirements to notify the employer and allow for conciliation before proceeding with the ballot. Additionally, the court examined whether the union's actions were reasonably likely to lead to protected action.

In its decision, the Commission found that the union had not adequately notified the employer or afforded sufficient opportunity for conciliation as required by the Act. The Commission emphasised that procedural fairness is a critical component of the legislative framework governing industrial action. As a result, the application to revoke the ballot order was upheld. The Commission concluded that the union's failure to comply with these procedural obligations rendered the ballot unlawful. The order for the ballot was consequently revoked.

The Fair Work Commission ordered that the protected action ballot initiated by the National Union of Workers be revoked, and that no further steps be taken to conduct the ballot. This decision underscored the importance of adherence to procedural requirements in the context of protected industrial action.

National Union of Workers v Staples Australia 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