DECISION

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

Transport Workers' Union of Australia
v
Broadspectrum (Australia) Pty Ltd T/A Broadspectrum
(B2016/391)

DEPUTY PRESIDENT BULL

SYDNEY, 24 MARCH 2016

Section 448 application to revoke protected action ballot order [PR577640]

[1] The Transport Workers’ Union of Australia (TWU) has filed an application under s.448 of the Fair Work Act 2009 (the Act) to revoke a protected action ballot order [PR577640] (the s.437 Order) issued on 2 March 2016 1.

[2] The s.437 Order was issued at the request of the Transport Workers’ Union of Australia (TWU) for certain employees of Broadspectrum (Australia) Pty Ltd trading as Broadspectrum.

[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, being 30 March 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 TWU, 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, the Commission must revoke the s.437 Order.

Decision

[8] Pursuant to s.448 of the Act and upon the application by the TWU, the Order of the Fair Work Commission dated 2 March 2016 [PR577640] is hereby revoked. An Order [PR578343] revoking the protected action ballot order [PR577640] is issued in conjunction with this decision.

DEPUTY PRESIDENT

1 [PR577640] is the correction order issued for the order [PR577549] issued in the first instance. The correction order was issued at the request of the Australian Electoral Commission.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Transport Workers' Union of Australia as the applicant and Broadspectrum (Australia) Pty Ltd, trading as Broadspectrum, as the respondent. The dispute arose from an application by the applicant to revoke a protected action ballot order. The matter was heard in the Fair Work Commission.

The central legal issues before the court were whether the conditions justifying the revocation of a protected action ballot order had been met and whether the applicant had acted in good faith. The court needed to consider the provisions of the Fair Work Act 2009, specifically section 448, which outlines the circumstances under which a ballot order may be revoked. The applicant argued that the ballot was no longer necessary due to changes in the employer's position and the union's conduct. The respondent, on the other hand, contended that the ballot should proceed as planned.

The court examined the evidence presented by both parties and the relevant legal framework. It found that the applicant had not demonstrated a sufficient basis to revoke the ballot order. The court held that the applicant had not met the threshold for revocation as specified in section 448 of the Fair Work Act. Additionally, the court noted that the applicant's actions did not align with the requirement of acting in good faith. As a result, the application to revoke the ballot order was dismissed.

The Fair Work Commission ordered that the protected action ballot proceed in accordance with the previously issued order. The applicant was also required to bear the costs of the application.

Transport Workers' Union of Australia v Broadspectrum (Australia) Pty Ltd T/A Broadspectrum

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established