United Workers' Union v Sullivan Nicolaides Pty Ltd

[2022] FWC 2837

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.448—Protected action

United Workers’ Union
v

Sullivan Nicolaides Pty Ltd

(B2022/1597)

DEPUTY PRESIDENT DEAN

CANBERRA, 21 OCTOBER 2022

Application for revocation of a Protected Action Ballot Order in B2022/1510.

The United Workers’ Union (UWU) has made an application pursuant to s.448 of the Fair Work Act 2009 to revoke a protected action ballot order (the Order) issued by the Commission on 13 October 2022 in matter B2022/1510. The Order was made with respect to employees of Sullivan Nicolaides Pty Ltd who are members of the UWU.

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.

On the material before me, I am satisfied that the application has met the prerequisites of s.448(1) of the Act and in accordance with s.448(2) I must revoke the Order. A revocation order will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers’ Union applied to the Fair Work Commission to revoke a Protected Action Ballot Order that had been issued to employees of Sullivan Nicolaides Pty Ltd who are members of the UWU. The application was made under section 448 of the Fair Work Act 2009, which allows an applicant for a protected action ballot order to apply to the Commission to revoke the order at any time before voting in the ballot closes. The court was required to determine whether the prerequisites of section 448(1) of the Act had been met, and if so, to revoke the Order in accordance with section 448(2).

Upon considering the material before the court, Deputy President Dean was satisfied that the application met the prerequisites of section 448(1) of the Act. Consequently, the court was obliged to revoke the Order under section 448(2). The court found that the application was made before the voting in the ballot closed, and that the prerequisites of section 448(1) had been met. As such, the court revoked the Order and issued a revocation order with the decision.

The court's decision resulted in the revocation of the Protected Action Ballot Order that had been issued to the employees of Sullivan Nicolaides Pty Ltd who are members of the UWU. The revocation order issued by the court meant that the ballot could no longer proceed, and the employees could not participate in the protected action ballot. This decision highlights the importance of the prerequisites set out in section 448(1) of the Act and the obligation of the court to revoke the Order if those prerequisites are met.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established