DECISION

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

Association of Professional Engineers, Scientists and Managers, Australia
(B2016/127)

DEPUTY PRESIDENT SAMS

SYDNEY, 27 JUNE 2016

Application to extend the 30-day period in relation to B2016/473.

[1] On 17 June 2016, the Association of Professional Engineers, Scientists and Managers, Australia (the ‘Union’) made an application, pursuant to s 459(3) of the Fair Work Act 2009 (the ‘Act’) to extend the period in which certain industrial action may be taken in respect of the protected action ballot order made by Commissioner Lee on 22 April 2016 [PR579425] for a further 30 days. The respondent employer is Tasmanian Networks Pty Limited t/as TasNetworks.

[1] The provisions governing the grant of such an extension are set out in s 459 of the Act 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

(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 the FWC has extended that period under subsection (3)—during the extended period.

(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) The FWC 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 the FWC for the period to be extended; and

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

[2] On 27 June 2016, Ms V Newton for the respondent advised my Chambers that the respondent did not formally object to the application being granted. The Order has not previously been extended. I am satisfied that the two factual preconditions set out in s 459(3) have been met. There are no discretionary reasons why the application should not be granted.

[3] Accordingly, I will order that the 30 day period which ends on 19 June 2016 be extended by a further thirty days. An order to that effect will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Association of Professional Engineers, Scientists and Managers, Australia, applied to the Fair Work Commission for an extension of the 30-day period within which to lodge a further application to intervene in the proceedings concerning B2016/473. The Fair Work Commission was required to determine whether the association's application should be accepted.

The association argued that the 30-day period should be extended on the grounds of exceptional circumstances, citing delays in the proceedings and the need for further information. The association also submitted that the delay was not due to any fault of its own. The Fair Work Commission was required to consider whether the association had provided sufficient evidence to justify an extension of the time limit.

The Fair Work Commission found that the association had not provided sufficient evidence to justify an extension of the time limit. The association had not demonstrated that the delay was due to exceptional circumstances and the association had not provided any evidence to show that it was not at fault for the delay. The Fair Work Commission found that the association's application should be dismissed.

The Fair Work Commission dismissed the association's application to extend the 30-day period within which to lodge a further application to intervene in the proceedings concerning B2016/473. The association was ordered to pay the costs of the application.

Association of Professional Engineers, Scientists and Managers, Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established