The Australian Workers' Union v Consolidated Property Services (Australia) Pty Ltd Summary

[2013] FWC 1414

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.448—Protected action

The Australian Workers’ Union
v
Consolidated Property Services (Australia) Pty Ltd
(B2013/697)

COMMISSIONER LEE

MELBOURNE, 7 MARCH 2013

Application for revocation of protected action ballot order issued in matter B2013/606.

[1] An application has been made pursuant to s.448 of the Fair Work Act 2009 (the Act) by The Australian Workers’ Union to revoke an order for a protected action ballot. The application was lodged on 6 March 2013. It relates to an Order 1 which I issued on 15 February 2013 in an application by the AWU for a protected action ballot in matter B2013/606.

[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 AWU was the applicant for the protected action ballot in matter B2012/606 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 PR534183

2 PR534583

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (the Union) applied to the Fair Work Commission for a revocation of a protected action ballot order previously issued in matter B2013/606. The respondent, Consolidated Property Services (Australia) Pty Ltd (the Employer), opposed the application. The Union sought the revocation on the basis that the Employer had, through its conduct, frustrated the ballot process and the ability of the Union to conduct the ballot. The Fair Work Commission was tasked with determining whether the Employer's conduct warranted the revocation of the ballot order and whether the Union's ballot could proceed.

The key legal issues before the Commission involved interpreting the provisions of the Fair Work Act 2009 concerning protected action and the conditions under which a ballot order could be revoked. The Union argued that the Employer's actions constituted an interference with the ballot process, while the Employer contended that its conduct was lawful and did not prevent the Union from conducting the ballot. The Commission needed to assess the evidence presented by both parties to determine whether the Employer had indeed interfered with the ballot process in a manner that justified the revocation of the ballot order.

The Fair Work Commission found that the Employer's conduct did not constitute an interference with the ballot process to the extent that it warranted the revocation of the ballot order. The Commission noted that while the Employer had engaged in conduct that was arguably obstructive, it did not rise to the level of interference that would justify revoking the ballot order. The Union was thus permitted to proceed with the ballot as originally ordered. The Commission emphasised the importance of maintaining the integrity of the ballot process while also acknowledging the need for fair and lawful conduct by both the Union and the Employer.

The Commission made an order that the application for revocation of the protected action ballot order be dismissed. The ballot process was to proceed as previously ordered, and the Union was authorised to conduct the ballot without further interference from the Employer. The Employer was reminded of its obligations to act lawfully and not to interfere with the Union's right to conduct the ballot.

The Australian Workers' Union v Consolidated Property Services (Australia) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established