AMACSU and Others v Flinders Operating Services Pty Ltd T/As Alinta Energy

[2011] FWA 4617

[2011] FWA 4617

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Australian Municipal, Administrative, Clerical and Services Union
v
Flinders Operating Services Pty Ltd T/A Alinta Energy
(B2011/3021)

Construction, Forestry, Mining and Energy Union

v

Flinders Operating Services Pty Ltd T/As Alinta Energy

(B2011/3022)

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

v

Flinders Operating Services Pty Ltd T/As Alinta Energy

(B2011/3024)

BARTEL, DEPUTY PRESIDENT ADELAIDE, 15 JULY 2011

Applications to extend the 30 day period of authorised industrial action

[1] The Australian Municipal, Administrative, Clerical and Services Union, SA and NT Branch (ASU), the Construction, Forestry, Mining and Energy Union Automotive (CFMEU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Technical, Supervisory and Administrative Division (AMWU, TSA Division) have each made application pursuant to s.459(3) of the Fair Work Act 2009 (the Act) to extend the 30-day period in which industrial action is authorised by the respective protected action ballots.

[2] Protected Action Ballot Orders were made on 19 April 2011 1 and in each case the ballots were declared by the Australian Electoral Commission on 23 May 2011. The 30-day period starting from the date of the declaration of the ballot expired on 21 June 2011. Potentially of some relevance to the application is that on 15 June 2011 the ASU and AMWU, TSA Division served s.414 notices of industrial action on the employer. On 20 June 2011, I issued an interim order2pursuant to s.420(2) of the Act that the notified industrial action must not occur. That interim order remained in place until the matter was determined on 14 July.3

[3] Section 459 of the Act reads as follows:

“459 Circumstances in which industrial action is authorised by protected action ballot

(1) Industrial action by employees is authorised by a protected action ballot if:

(a) the action was the subject of the ballot; and

(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(c) more than 50% of the valid votes were votes approving the action; and

(d) the action commences:

(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii) if FWA has extended that period under subsection (3)—during the extended period.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

(2) If:

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(3) FWA may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to FWA for the period to be extended; and

(b) the period has not previously been extended.”

[4] Flinders Operating Services Pty Ltd T/As Alinta Energy (the employer or respondent) opposes each application. Ms Smith, on behalf of the employer, argued that an application under s.459(3) needs to be made in the currency of the initial 30 day period in order to invoke the jurisdiction of the Tribunal. In support of this position Ms Smith stated that the scheme of the Act entitled the employer to some certainty regarding the operation of its business. She contended that the lapse of the 30 day period in which industrial action authorised by the protected action ballot is protected, means that the initial ballot is ‘stale’ and the unions should make application for a further protected action ballot order.

[5] Secondly, Ms Smith argued that even if the Tribunal did have jurisdiction to issue the orders sought by the unions, it should decline to exercise its discretion to do so. She stated that it was open to the ASU and CFMEU to seek an extension under s.459(3) of the Act within the initial 30 day period and no explanation has been provided for the failure to do so. Ms Smith acknowledged that the unions had participated in conciliation during the period between 22 May and 2 June 2011, however the 30 day period had not elapsed at the conclusion of conciliation.

[6] In relation to the CFMEU, Ms Smith stated that there had been no notification of industrial action to date and members of the CFMEU were currently voting on a proposed agreement, with the voting period being 8 - 29 July 2011. She contended that it would be futile to extend the 30 day period in these circumstances because any action taken could not be said to be for the purpose of organising or advancing claims in relation to a proposed enterprise agreement, and would not therefore be protected industrial action. 4 In addition, the expiry date of any 30 day period would fall within the voting period.5

[7] Mr Ats on behalf of the three Unions, filed written submissions on 12 July. He submitted that the extensions were sought to enable the unions to pursue their legitimate right to take protected industrial action in pursuit of an enterprise agreement, and that s.459(3) contained no qualifications on when such an extension could be sought. The facts required to enliven the jurisdiction of the Tribunal under s.459(3) are two fold and have been met, and Mr Ats argued that any matters beyond the jurisdictional prerequisites can only go to the exercise of the Tribunal’s discretion.

[8] In relation to the exercise of the Tribunal’s discretion, Mr Ats noted that the ASU and AMWU, TSA Division notified industrial action within the 30 day period and have not taken industrial action as a result of the s.420(2) interim order, referred to above. These Unions should not be penalised for complying with the Tribunal’s order or for participating in conciliation without industrial action in place. He submitted that if the Tribunal declined the present applications it would be a disincentive to bargaining representatives to continue to seek to reach agreement without proceeding with industrial action authorised by a protected action ballot.

[9] Mr Ats submitted that the CFMEU, as with the other Unions, has been genuinely trying to reach an agreement with the employer and has adopted an approach in accordance with the will of its members.

Consideration

[10] There are only two requisite conditions to invoke the Tribunal’s power to grant an extension of the 30 day period in which protected action can be taken - ss.459(3)(a) and (b) of the Act. Both requirements have been satisfied by each of the Unions in the applications before me. The effect of the employer’s submission is that there is a third precondition to be met in order to invoke the power to grant an extension, that is, that the application for an extension must be made within the initial 30 day period. Such an interpretation is not open on the ordinary meaning of the words in this subsection.

[11] In relation to the exercise of the discretion under s.459(3) of the Act, I consider that the following matters are relevant. Firstly, there was no submission that the unions are not genuinely trying to reach agreement with the employer. Secondly, the fact that there has been no industrial action in the initial 30 day period should not weigh against the exercise of the discretion in favour of an extension. The unions participated in conciliation before the Tribunal over a period of some 11 days. In the case of the ASU and AMWU, TSA Division, notices of industrial action were served within the 30 day period but as a result of the operation of the Act and then a decision that the notified industrial action was not protected, there was a period in which no action could take place.

[12] The CFMEU is in a different position from the ASU and AMWU, TSA Division to the extent that its members are currently participating in a vote for a proposed enterprise agreement. I accept that it is preferable that the vote be undertaken in an environment free from industrial action, and this has been the CFMEU’s approach to date in any event. Should its position change, the employer can pursue other avenues under the Act to challenge the taking of industrial action and as such I do not consider that this counts against the exercise of the discretion under s.459(3) of the Act.

[13] The applications for an extension of the 30-day period are granted.

[14] This case has raised the issue of the treatment of the period during which the s.420(2) interim order was in operation, and in particular, whether s.429 of the Act has any application. Section 429 provides, inter alia, that for the purposes of working out when employee claim action may be engaged in, a suspension period must be disregarded. 6

[15] It is my initial view that this section does not apply to the period of operation of an interim order under s.420(2) of the Act, however I would be hesitant make a determination on this point without more complete submissions on this issue from the parties. Given the need for this matter to be determined as quickly as possible, since each day that elapses eats into the extension period, I consider that a preferable course is to make the extension order now and one or both parties can make application at a subsequent date if this issue is required to be determined.

[16] The Unions seek an extension of 30 days and there is nothing that has been put to suggest a lesser period is more appropriate. I interpose that the terms of s.459(3) refer to an extension of “up to 30 days”, implying that the maximum period of suspension is 29 days. The Tribunal therefore exercises its discretion to extend the 30-day period which commenced on 23 May 2011, by a further 29 days accordance with s.459(3) of the Act. Orders in respect to each application will be issued with this decision.

DEPUTY PRESIDENT

 1   PR508610 (AMWU, TSA Division); PR508612 (ASU); PR508616 (CFMEU).

 2   PR510708

 3   [2011} FWA 4506

 4   Section 409 of the Act

 5   Ex R1 Outline of Submissions of Respondent; transcript 1 July 2011

 6   Section 429(3) of the Act

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