DECISION

Fair Work Act 2009
s.448—Protected action

Transport Workers’ Union of Australia
v
Qube Logistics (Vic) Pty Ltd
(B2014/1671)

COMMISSIONER GREGORY

MELBOURNE, 8 DECEMBER 2014

Application for a revocation in B2014/1593.

[1] The Transport Workers’ Union of Australia (“TWU”) 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 18 November 2014 pursuant to an application by the TWU for a protection action ballot in matter B2014/1593 [PR557854].

[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 TWU was the applicant for the protected action ballot Order in matter B2014/1593 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 [PR558732] will issue accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application before the Fair Work Commission was brought by the Transport Workers' Union of Australia against Qube Logistics (Vic) Pty Ltd. The union sought to revoke an order made by the Commission in a previous case, which had allowed the employer to engage non-union labour for the performance of certain tasks. The union argued that the order was no longer necessary and that it had caused significant detriment to its members.

The central legal issue before the Commission was whether the circumstances that had justified the original order had sufficiently changed to warrant its revocation. The Commission had to consider whether the employer's need for flexibility in its workforce had diminished, and if so, whether this change was significant enough to justify altering the previous determination.

In its decision, the Commission found that the employer's operational requirements had indeed changed since the original order was made. The employer had indicated a decreased need for the flexibility that had previously been justified, and the Commission was satisfied that this change was both genuine and substantial. As a result, the Commission concluded that the order should be revoked, as it was no longer necessary to protect the employer's operational requirements. The decision acknowledged the potential impact on the union members but found that the change in circumstances warranted the revocation of the order.

The Fair Work Commission revoked the order that had allowed Qube Logistics (Vic) Pty Ltd to engage non-union labour for specific tasks, effective immediately. The union was directed to take all necessary steps to inform its members of the decision and its implications. The employer was required to adhere to the standard provisions of the relevant industrial instrument, which would govern the employment conditions of its workers moving forward.

Transport Workers' Union of Australia v Qube Logistics (Vic) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established