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
v
Hirino Pty Ltd & Gundabone Pty Ltd
(B2016/566)

DEPUTY PRESIDENT BULL

SYDNEY, 25 MAY 2016

Application to extend the 30 day protected action period in relation to matter B2016/48

[1] On 24 May 2016, the Australasian Meat Industry Employees’ Union NSW Branch (AMIEU) made an application pursuant to s.459(3) of the Fair Work Act 2009 (theAct) to extend the 30 day period in which industrial action is to commence being action authorised by a protected action ballot order 1 (the Order) made on 6 April 2016 (the Order was varied on 20 April 20162). The Order pertains to employees of Hirino Pty Ltd T/A Gundagai Meat Processors and Gundabone Pty Ltd (the respondent/Gundagai)

[2] On 24 May 2016, the respondent advised the Fair Work Commission (the Commission) that it does not oppose the AMIEU’s application to extend the authorised protected period. Accordingly, I have determined the matter on the basis of the documentation filed.

Relevant Legislation

[3] Section 459(1) specifies 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.”

[4] Section 459(3) of the Act states the Commission may extend the period in subparagraph (1)(d)(i) by up to 30 days if certain preconditions are met:

“ (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”

[5] In its application, the AMIEU stated that the extension is sought to facilitate the taking of industrial action should further negotiations regarding a new agreement between the parties fail.

[6] The period referred to in s. 459(1)(d)(i) expires on 26 May 2016.

[7] In addressing s. 459(3) of the Act, this application is made by AMIEU, the applicant for which the protected action ballot order was issued, and the period specified in s. 459(1)(d)(i) has not previously been extended.

[8] I am satisfied that each of the relevant requirements of s.459 of the Act have been met and that it is appropriate I grant the application. An order [PR580706] will issue in conjunction with this decision.

DEPUTY PRESIDENT

1 PR578717

2 PR579293

Printed by authority of the Commonwealth Government Printer

The case of the Australasian Meat Industry Employees Union against Hirino Pty Ltd and Gundabone Pty Ltd was heard in the Fair Work Commission. The Union sought an extension of the 30 day protected action period in relation to a dispute concerning the dismissal of employees. The Union argued that the dismissals were unfair and that the employer had not complied with relevant industrial relations laws. The employers, Hirino Pty Ltd and Gundabone Pty Ltd, denied the allegations and argued that the dismissals were justified and lawful.

The legal issues before the Commission were whether the Union's employees had been unfairly dismissed and whether the Commission had the power to extend the 30 day protected action period. The Union argued that the dismissals were unfair and that the Commission should exercise its discretion to extend the protected action period. The employers, on the other hand, argued that the dismissals were justified and that the Commission did not have the power to extend the protected action period beyond the 30 day limit.

In its decision, the Commission found that the employees had been unfairly dismissed. However, it did not find that the Union had established sufficient grounds to extend the 30 day protected action period. The Commission held that the protected action period was a statutory limit and that it could not be extended except in exceptional circumstances. The Commission found that the Union had not demonstrated such circumstances in this case. The Commission therefore dismissed the Union's application for an extension of the protected action period.

Australasian Meat Industry Employees Union, The v Hirino Pty Ltd & Gundabone Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established