Association of Professional Engineers, Scientists and Managers, Australia, The v Queensland Rail Transit Authority T/A Queensland Rail

[2023] FWC 1533

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

Queensland Rail Transit Authority T/A Queensland Rail

(B2023/641)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 27 JUNE 2023

Application to extend the 30 day period in relation to B2023/440

This matter concerns the declaration of the result of a protected action ballot (PR761948) held in matter B2023/440 and declared on 16 May 2023.

The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) has made an application pursuant to s.459(3) of the Fair Work Act 2009 (Act) to extend the 30 day period in which industrial action is authorised by the relevant protected action ballot.

Section 459(3) of the Act provides 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.”

The application made by the APESMA contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

Queensland Rail Transit Authority T/A Queensland Rail (Queensland Rail) has advised it does not have any objection to this application.

I am satisfied that the relevant requirements of the Act have been met and that the application should be granted given the express statutory terms.

Accordingly, pursuant to section 459(3) of the Act, I order that the 30 day period for the commencement of protected industrial action for eligible APESMA members employed by Queensland Rail be extended by a further 30 days.

This order will operate on and from 27 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) applied to the Fair Work Commission (FWC) for an extension of the 30-day period in which industrial action could be authorised by a protected action ballot. The application related to a previous decision where the FWC had declared the result of a protected action ballot (PR761948) held in matter B2023/440. Queensland Rail Transit Authority T/A Queensland Rail (Queensland Rail) did not object to the application. The legal issue before the FWC was whether the application met the statutory requirements to extend the 30-day period, as set out in section 459(3) of the Fair Work Act 2009.

The FWC considered that the requirements of the Act had been met, as APESMA had applied for the extension and the period had not previously been extended. The Deputy President was satisfied that the application should be granted in accordance with the express statutory terms. The FWC noted that the extension of the period was not a matter of discretion but a mandatory requirement if the statutory conditions were satisfied. Therefore, the FWC ordered that the 30-day period for the commencement of protected industrial action for eligible APESMA members employed by Queensland Rail be extended by a further 30 days.

This order will operate on and from 27 June 2023, which was the date of the decision. The FWC did not provide any further explanation or justification for its decision, as it was based on the plain language of the statute. The extension of the period will allow APESMA to take protected industrial action for a total of 60 days, subject to any other legal constraints or requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established