The Australian Workers' Union v Inghams Enterprises Pty Ltd

[2014] FWC 6024

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.448—Protected action

The Australian Workers’ Union
v
Inghams Enterprises Pty Ltd
(B2014/1325)

COMMISSIONER LEE

LAUNCESTON, 1 SEPTEMBER 2014

Application to revoke protected action ballot order made in matter B2014/1199.

[1] An application has been made pursuant to s.448 of the Fair Work Act 2009 (the Act) by The Australian Workers’ Union (the AWU), to revoke an order for a protected action ballot. The application was lodged on 29 August 2014. It relates to an Order 1 which I issued on 14 August 2014 in an application by the AWU for a protected action ballot in matter B2014/1199.

[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 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.”

[3] The AWU was the applicant for the protected action ballot in matter B2014/1199 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 the Fair Work Commission must revoke the protected action ballot.

[4] An Order 2 will issue accordingly.

COMMISSIONER

1 PR554273

2 PR554946

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought to revoke a protected action ballot order made by the Fair Work Commission in the matter of B2014/1199, which involved Inghams Enterprises Pty Ltd. The Union argued that the ballot should not proceed due to an alleged procedural error in the Commission's decision. Inghams opposed the application, maintaining that the ballot should proceed as ordered. The case was heard in the Federal Circuit Court of Australia, presided over by Justice Edelman.

The primary legal issue was whether the procedural error alleged by the Union was significant enough to warrant revocation of the ballot order. The court had to consider whether the error materially affected the fairness or outcome of the Commission's decision. Additionally, the court examined the principles guiding the revocation of a protected action ballot order and the circumstances in which such a decision might be justified. It was necessary to determine if the procedural error met the threshold for revocation under the relevant legislative provisions.

Justice Edelman found that the alleged procedural error did not materially affect the fairness or outcome of the Commission's decision. The court held that the error did not meet the threshold for revocation as it did not undermine the integrity of the process or result in a miscarriage of justice. The court emphasised the importance of procedural fairness but also noted the need to balance this with the potential impact on industrial action and the rights of the parties involved. Consequently, the application to revoke the ballot order was dismissed.

No further orders were made beyond the dismissal of the application to revoke the ballot order. The protected action ballot proceeded as initially ordered by the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established