Association of Professional Engineers, Scientists and Managers, Australia v Ergon Energy Corporation Limited

[2011] FWA 9318

[2011] FWA 9318

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

Association of Professional Engineers, Scientists and Managers, Australia
v
Ergon Energy Corporation Limited
(B2011/4099)

COMMISSIONER ASBURY BRISBANE, 23 DECEMBER 2011

Application to extend the 30 day protected action period in relation to matter B2011/3826.

Background

[1] On 19 December 2011, The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) made an application under s.459 of the Fair Work Act 2009 (the Act) for an extension to the 30 day period in which industrial action is authorised by protected action ballot. The application sought an order in relation to employees of Ergon Energy Corporation Limited (Ergon) whose terms and conditions of employment are covered, will be covered by a new proposed agreement.

[2] On 21 December 2011 an email was received from Mr Roger Glover, Manager Industrial Relations, of Ergon in the following terms:

“Subject: Re: B2011/4099 APESMA v Ergon Energy Corporation Ltd

Ergon will not be opposing the APESMA s.459 application to extend the protected industrial action period.”

[3] On 23 December 2011 APESMA filed a witness statement of Mr David Pullen, Lead Organiser, APESMA. It was submitted that in determining the application, FWA should exercise discretion under s.459(3) of the Act to extend the 30 day period and that the Applicant has not previously applied for the 30 day period to be extended.

[4] A protected action ballot order was originally made by the Tribunal as presently constituted on 4 November 2011. The ballot was conducted by the Australian Electoral Commission and Declaration of Results was issued on 30 November 2011. By virtue of s.459(1)(d) of the Act, industrial action was authorised by that ballot if it commenced on 30 December 2011.

Legislation

[5] Section 459(1) deals with circumstances in which industrial actions is authorised by a protected action ballot and provides 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.

[6] Section 459(3) provides that FWA may extend the 30 day period as in the following terms:

(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.

Consideration

[7] Section 459(1) establishes a 30 day period where the right to take industrial action can be described on the basis that employees are required to “use it or lose it”. Section 459(3) gives FWA a discretionary power to extend the 30 day period. That power may be exercised in circumstances where the application for an extension is made either before or after the expiration of the original 30 day period. 1

[8] It has been held that the discretion should be exercised in situations where it can be demonstrated that bargaining is proceeding and an extension is consistent with the objects of the Act as specified in s.436. 2 The discretion is wide and is unconditioned by a statutory direction.3 Parliament has provided for a one off extension without the need for a further ballot, and cogent reasons are required to refuse an application for an extension, such as a change in disposition or composition of employees.4

[9] Circumstances in which an extension has been granted are that parties are bargaining in good faith; there is not a lengthy delay between the expiry of the original 30 day period and the application for an extension being made; 5 parties have participated in conciliation during the original 30 day period;6 or have refrained from taking industrial action and bargained constructively.7 It is also the case that if an overly restrictive view is taken of the circumstances in which the discretion will be exercised, the result will be that industrial action may be taken in a number of forms during the initial 30 day period, simply to preserve the right to take it after that period has expired. This outcome is not consistent with the objects in s.436 of the Act of establishing a fair and simple process.

[10] In my view the term “extension” implicitly means that the reference point for the extension is the date upon which the first 30 day period expired, and the time for the extension runs from no later than that date, so that if a second 30 day extension is granted it includes the last day of the first 30 day period, and is a 29 day extension from that date. 8

Conclusions

[11] In the present case, there is uncontested evidence that APESMA members have not taken industrial action authorised by the ballot. It is also the case that APESMA and its members have participated in conciliation proceedings currently being conducted by Fair Work Australia in relation to the proposed agreement.

[12] There is no evidence to suggest that APESMA and its members are not bargaining in good faith or that APESMA and its members are not genuinely trying to reach agreement with the employer. Accordingly, the application for an extension is granted. In the absence of any evidence or submissions to the contrary, I have also decided that the extension will operate for a period of 29 days from the 30 December 2011, the date upon which the first 30 day period expired.

[13] An Order reflecting this decision will issue and the extension period will operate to 28 January 2012.

COMMISSIONER

 1   National Union of Workers v Symbion Pharmacy Services Pty Ltd [2009] FWA 1284 per O’Callaghan SDP at [11]; AMACSU and Others v Flinders Operating Services Pty Ltd T/As Alinta Energy[2011] FWA 4617 per Bartel DP at [10].

 2   National Union of Workers v Symbion Pharmacy Services Pty Ltd [2009] FWA 1284 per O’Callaghan SDP at [11]

 3   Re: Transport Workers’ Union of Australia [2011] FWA 1097 per Lewin C.

 4   MUA v DP World Adelaide Pty Ltd [2010] FWA 7638 per Hampton C.

 5   National Union of Workers v Symbion Pharmacy Services Pty Ltd op. cit.

 6   AMACSU and Others v Flinders Operating Services Pty Ltd T/As Alinta Energy op. cit.

 7   MUA v DP World Adelaide Pty Ltd op. cit.

 8   AMACSU and Others v Flinders Operating Services Pty Ltd T/as Alinta Energy op. cit.

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