Australasian Meat Industry Employees Union, The v JBS Australia Pty Ltd

[2015] FWC 681

[2015] FWC 681

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459—Protected action

Australasian Meat Industry Employees Union, The
v
JBS Australia Pty Ltd
(B2015/249)

COMMISSIONER LEWIN MELBOURNE, 28 JANUARY 2015

Application to extend the 30-day period in relation to B2014/1641.

Introduction

[1] The Australasian Meat Industry Employees Union (the AMIEU) made an application to the Fair Work Commission (the Commission) on 22 January 2015 under s 459(3) of the Fair Work Act 2009 (the Act) to extend the 30 day period in which industrial action is authorised by protected action ballot.

[2] The protected action ballot was held pursuant to the protected action ballot order made by the Commission in matter B2014/1641 on 28 November 2014. The group or groups of employees balloted were:

“All employees of [JBS Australia Pty Ltd] at the premises at Racecourse Road, Cobram, who are members of the [AMIEU], and for whom the [AMIEU] is the bargaining representative, and who will be covered by the proposed enterprise agreement except an employee who is bound by an individual agreement-based transitional instrument that has not passed its nominal expiry date on the day the ballot order is made, unless such an employee has made a conditional termination of that instrument.”

[3] The Australian Electoral Commission declared the results of the protected action ballot on 22 December 2014. At least a majority of employees on the roll of voters for the ballot voted in the ballot and a majority of valid votes received authorised the taking of various forms of protected industrial action.

Legislative scheme

[4] Section 459(3) of the Act provides the Commission with a discretion to extend the 30 day period in which industrial action is authorised by protected action ballot 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.”

[5] Section 459(1)(d)(i) provides that industrial action by employees is authorised by protected action ballot if, amongst other criteria that must be met, the action commences during the 30 day period starting on the date of the declaration of results of the ballot.

Consideration

[6] The AMIEU provided with its application a statutory declaration that provided evidence that the requirements in s 459(3)(a) and (b) had been met.

[7] The statutory declaration provided further evidence that there had been interruptions to ongoing enterprise bargaining negotiations due to the Christmas and New Year shut down of the relevant meat processing plant; the taking of leave by AMIEU representatives over the Christmas/New Year period; and, that the employees had not taken any protected industrial action thus far. The AMIEU submitted that in light of these circumstances, I should exercise my discretion to extend the 30 day period.

[8] On 27 January 2015 the Commission contacted JBS Australia Pty Ltd (JBS Australia) to determine if it opposed the application sought by the AMIEU. JBS Australia advised the Commission by writing on 28 January 2015 that it did not oppose the application sought by the AMIEU.

[9] The parties did not seek to provide further submissions or to be heard and I have determined this matter on the papers.

[10] I am satisfied the relevant requirements of the Act have been met and that I should exercise my discretion to grant the application sought by the AMIEU.

Decision

[11] Pursuant to s 459(3) of the Act, the 30 day period in which protected industrial action for eligible AMIEU members employed by JBS Australia may commence is extended by a further 30 days.

[12] An order will issue accordingly.

COMMISSIONER

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