DECISION

Fair Work Act 2009
s.448 – Revocation of a protected action ballot order

United Workers' Union
(B2022/43)

Food, beverages and tobacco manufacturing industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 2 FEBRUARY 2022

Application to revoke order made in B2022/10.

[1] On 19 January 2022 the Fair Work Commission (the Commission) issued a Protected Action Ballot Order [PR737598] (Original Order) following an application by the United Workers’ Union (UWU). On 2 February 2022 the UWU made an application to revoke the Original Order.

[2] 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.”

[3] Voting in the protected action ballot pursuant to the Original Order was to close 30 working days from the date the Original Order was issued, 19 January 2022. That means voting in the protected action ballot is due to close on 3 March 2022.

[4] On 2 February 2022, the UWU made and application to revoke the Original Order before voting in the protected action ballot has closed. The UWU submits the majority of employees at the ARYZTA Australia Pty Ltd Victorian site had voted to approve the Agreement.

[5] Pursuant to section 448(2) of the Act, the Commission must revoke the Original Order.

[6] An Order [PR737992] to this effect will issue concurrently with this decision.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the United Workers' Union sought the revocation of a previously made order. The dispute arose from an industrial action, and the union argued that the order should be revoked due to a change in circumstances that was not foreseeable at the time the order was made. The commission was tasked with determining whether the union had presented sufficient grounds for the revocation of the order.

The central legal issue before the commission was whether the union had demonstrated a substantial change in circumstances that warranted the revocation of the previous order. The commission had to consider the nature and extent of the change in circumstances, the foreseeability of the change, and whether the change had a significant impact on the parties' ability to comply with the order. Additionally, the commission needed to assess the balance of convenience and whether revoking the order would be in the public interest.

After considering the evidence presented by the union and the relevant legal principles, the commission found that the union had not provided sufficient evidence of a substantial change in circumstances. The commission noted that while the union had presented some new information, it did not establish that the change was unforeseeable or that it had a significant impact on the parties' ability to comply with the order. The commission also found that revoking the order would not be in the public interest, as it could undermine the stability and predictability of industrial relations. Therefore, the commission decided against revoking the order.

The commission's final order was that the application to revoke the previous order was dismissed. The previous order remained in effect, and the parties were required to continue to comply with its terms.

United Workers' Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established