National Union of Workers v Toll Transport Pty Ltd T/A Toll Customised Solutions

[2013] FWC 5774

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.448—Protected action

National Union of Workers
v
Toll Transport Pty Ltd T/A Toll Customised Solutions
(B2013/1129)

COMMISSIONER GREGORY

MELBOURNE, 14 AUGUST 2013

Application for revocation of protected action ballot order made in B2013/1071.

[1] The National Union of Workers (NUW) has made an application pursuant to s.448 of the Fair Work Act 2009 (the Act) to revoke a protected action ballot Order.

[2] The application relates to an Order issued on 30 July 2013 pursuant to an application by the NUW for a protected action ballot in matter B2013/1071 [PR539570].

[3] Section 448 of the Act provides:

“448 Revocation of protected action ballot order

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

[4] I am satisfied that the NUW was the applicant for the protected action ballot Order in matter B2013/1071 and is therefore eligible to make this application. I am also satisfied that the voting period under the Original Order has not yet closed.

[5] In these circumstances, s.448(2) of the Act provides that the Fair Work Commission must revoke the protected action ballot order. An Order [PR540295] will issue accordingly.

COMMISSIONER

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CaseChat Overview and Summary

The National Union of Workers filed an application against Toll Transport Pty Ltd, trading as Toll Customised Solutions, before the Fair Work Commission. The union sought to revoke a previously issued protected action ballot order, which had authorised a protected industrial action ballot. The union argued that the ballot order should be revoked due to certain procedural irregularities that occurred during the initial ballot process. The application was heard by the Commission, which was required to determine whether the irregularities were significant enough to warrant the revocation of the ballot order.

The legal issues before the Commission centred on whether the procedural irregularities in the initial ballot process were substantial enough to invalidate the ballot order. The Commission needed to consider the nature and extent of the irregularities and whether they impacted the fairness and integrity of the ballot process. The union argued that the irregularities were significant and warranted the revocation of the ballot order, while Toll Customised Solutions contended that the irregularities were minor and did not affect the validity of the ballot order.

The Commission reviewed the evidence and submissions from both parties, focusing on the procedural irregularities and their impact on the ballot process. The Commission determined that the irregularities, while present, did not materially affect the fairness and integrity of the ballot process. The Commission found that the irregularities did not undermine the overall validity of the ballot order and, therefore, dismissed the union's application for revocation. The Commission concluded that the ballot order remained valid and enforceable.

In light of the findings, the Commission dismissed the union's application and determined that the ballot order remained in effect. No further action was required as the ballot order was upheld. The union was not granted the relief it sought, and the industrial action ballot process could proceed as originally authorised.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established