Australasian Meat Industry Employees Union, The

[2014] FWC 9442

[2014] FWC 9442

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

Australasian Meat Industry Employees Union, The
(B2014/1730)

DEPUTY PRESIDENT ASBURY BRISBANE, 24 DECEMBER 2014

Application to extend the 30-day period in relation to B2014/1559.

Background

[1] On 24 December 2014, The Australasian Meat Industry Employees Union (AMIEU) 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 Australian Country Choice Production Pty Ltd and Cannon Hill Services Pty Ltd trading as Australian Country Choice whose terms and conditions of employment will be covered by a new proposed agreement.

[2] On 24 December 2014 an email was received from Mr David Matthews, Group Human Resources and Safety Manager of Australian Country Choice in the following terms:

“Subject: Re: B2014/1729 & B2014/1730 - Application by Australasian Meat Industry Employees Union, The (007V)

The Company has no opposition to this extension, as we are not far from resolving all matters with the union in preparation for an EBA vote in the new Year.”

[3] The AMIEU submits in their Application that, the Fair Work Commission (the FWC) should exercise discretion under s.459(3) of the Act to extend the 30 day period, on the following grounds as set out in the Application:

● The AMIEU, as a bargaining agent for several employees to be covered by the proposed agreement, has been bargaining in good faith with the Respondent since bargaining commenced.
● Recent negotiations have brought the parties closer to reaching an agreement.
● If the AMIEU were forced to organise protected industrial action to preserve its member’s rights under the Actand comply with the strict terms of s.459, it may have the effect of de-railing and sabotaging the recent productive negotiations.
● There is no reason to believe the attitude of the participants in the protection action ballot has changed. The questions in favour of such action were carried in an overwhelming fashion.
● No prejudice would be caused to any party if the extension was granted and it may result in a more favourable outcome for the Respondent.
● Granting the extension would be consistent with Objects (3a) and (f) of the Act.
● For such further and other reasons as the Commission may consider relevant in granting this application.

[4] A protected action ballot order was originally made by the FWC as presently constituted on 11 December 2014. The ballot was conducted by the Australian Electoral Commission (AEC) and Declaration of Results was issued on 1 December 2014. By virtue of s.459(1)(d) of the Act, industrial action was authorised by that ballot if it commenced on 31 December 2014.

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 the FWC 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 the FWC may extend the 30 day period as in the following terms:

(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.

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 the FWC 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, it is uncontested that AMIEU members have not taken industrial action authorised by the ballot. It is also the case that AMIEU and Australian Country Choice have both submitted that the parties are close to reaching an agreement.

[12] There is no evidence to suggest that AMIEU and its members are not bargaining in good faith or that AMIEU 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 31 December 2014, 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 29 January 2015.

DEPUTY PRESIDENT

 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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