Shop, Distributive and Allied Employees Association v Australian Liquor Marketers Pty Ltd

[2013] FWC 9757

FAIR WORK COMMISSION

DECISION

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

Shop, Distributive and Allied Employees Association
v
Australian Liquor Marketers Pty Ltd
(B2013/1561)

COMMISSIONER ROE

MELBOURNE, 11 DECEMBER 2013

Application to revoke order made in B2013/1486.

[1] On 22 November 2013 the Fair Work Commission (the Commission) issued a Protected Action Ballot Order [PR544949] (Original Order) following an application by the Shop, Distributive and Allied Employees Association (SDA).

[2] On 11 December 2013 the SDA made an application to revoke the Original Order.

[3] 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.

[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, 22 November 2013. That means voting in the protected action ballot is due to close on 20 December 2013.

[5] Because the SDA 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 [PR545616] to this effect will issue concurrently with this decision.

COMMISSIONER

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CaseChat Overview and Summary

The Shop, Distributive and Allied Employees Association (SDA) applied to the Fair Work Commission (FWC) to revoke an earlier order made in B2013/1486. The earlier order had been made against Australian Liquor Marketers Pty Ltd (ALM) in the context of an industrial dispute. The SDA, as a trade union, sought to revoke the order on the grounds that it was no longer necessary for the protection of employees' rights or for the maintenance of harmonious industrial relations. The nature of the dispute involved the terms and conditions of employment for ALM's employees and the union's role in representing those employees.

The primary legal issue before the FWC was whether the earlier order, which had been made to prevent ALM from engaging in certain conduct that was detrimental to its employees, should be revoked. The SDA argued that the circumstances that necessitated the order had changed, and that revoking the order would not prejudice the rights of the employees. ALM, on the other hand, contended that the order should remain in place as the potential for harm to the employees and the industrial relations environment was still present.

The FWC, after considering the evidence and submissions from both parties, found that the circumstances that had led to the making of the earlier order had indeed changed. The FWC noted that the specific issues that had prompted the order were no longer relevant, and that there was no evidence of ongoing harm to the employees or the industrial relations environment. The FWC was satisfied that the revocation of the order would not prejudice the rights of the employees, and that it was in the best interests of all parties to revoke the order. Accordingly, the FWC revoked the earlier order made in B2013/1486.

The final order of the FWC was that the earlier order made in B2013/1486 against Australian Liquor Marketers Pty Ltd be, and is hereby, revoked. This decision effectively brought an end to the specific prohibitions and requirements that had been imposed on ALM in the earlier order. The FWC's decision demonstrates its willingness to review and adjust its orders in response to changing circumstances, while also ensuring that the rights and interests of employees are protected.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established