Association of Professional Engineers, Scientists and Managers, Australia, The v Hydro-Electric Corporation T/A Entura

[2015] FWC 8723

[2015] FWC 8723

FAIR WORK COMMISSION

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, The
v
Hydro-Electric Corporation T/A Entura
(B2015/1701)

DEPUTY PRESIDENT ABEY HOBART, 16 DECEMBER 2015

Application to extend the 30-day period in relation to B2015/1460.

[1] The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) has made application pursuant to s.459(3) to extend the 30 day period in which industrial action is authorised by a protected action ballot.

[2] A Protected Action Ballot Order was made on 20 October 2015. On 17 November 2015 the Australian Electoral Office issued a Declaration of Results of the Ballot. A valid majority of employees had voted to approve each question asked in the Ballot.

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

(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.

[4] The initial 30 day period for the taking of industrial action will expire on 17 December 2015.

[5] In a statutory declaration dated 10 December 2015, Aleysia Leonard for APESMA. States that:

• The APESMA has and will continue to bargain in good faith with Entura and continue to try and reach agreement with Entura.

• To date no employee claim action has been notified or taken place in relation to the Protected Action Ballot Order B2015/1460 (PR573087).

[6] By email dated 14 December 2015 the respondent advised:

“I wish to advise the Commission that whilst the business does not consent to the application we will not be making any submissions.”

Consideration

[7] In this case the two prerequisites as found in s. 459(3) for the granting of an extension have been satisfied.

[8] There is no submission that the APESMA is not genuinely trying to reach agreement with the employer. In my view the fact that there has been no industrial action in the initial 30 day period should not weigh against the discretion in favour of an extension.

[9] Accordingly, the application is granted and the period in which APESMA and APESMA members may take protected industrial action is extended by a further 30 days.

[10] The Order reflecting this decision follows.

DEPUTY PRESIDENT

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