DECISION

Fair Work Act 2009
s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Australian Federated Union of Locomotive Employees
v
Asciano Services Pty Ltd T/A Pacific National
(B2017/344)

COMMISSIONER SPENCER

BRISBANE, 4 MAY 2017

Application to extend the 30-day period in relation to B2017/182.

[1] On 28 April 2017, the Australian Federated Union of Locomotive Employees (the Union/Applicant) made an application to the Fair Work Commission (the Commission), pursuant to s.459(3) of the Fair Work Act 2009 (the Act). The Union has applied for an extension to the 30 day period in which industrial action is authorised by the protected action ballot order, made by Senior Deputy Presient Hamberger on 7 March 2017 [PR590800]. This application seeks an extension pursuant to s.459(3) for a further 30 days. The Respondent is Asciano Services Pty Ltd T/A Pacific National.

Legislation

[2] The provisions governing the grant of such an extension are set out in s.459 of the Act 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.

(2) If:

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(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.

[3] Section 459(3) of the Act confers a discretion on the Commission as to whether to grant such an application upon satisfaction as to the two factual preconditions set out in sub-sections (a) and (b). The two preconditions in section 459(3) of the Act for the Commission to exercise its discretion and make the order sought are as follows; namely, an application (this application) has to be made to extend the 30 day period; and the period has not previously been extended.

[4] The result of the ballot ordered by the Commission was declared by the Australian Electoral Commission on 3 April 2017.

[5] On 3 May 2017, Directions were issued for the Respondent to advise whether they objected to the Application.

[6] On 4 May 2017, Mr Egon Christensen, Service Delivery Manager Blackwater, Newlands and Townsville, on behalf of the Respondent, corresponded with my chambers in relation to the application and indicated that the Respondent has no objection to the extension.

[7] The Applicant for the protected action ballot order has applied to the Commission for the period to be extended and I am satisfied that the period has not previously been extended.

[8] On the basis that the legislative tests set out in s.459(3) have been met, a further Order will therefore issue that the 30 day period, authorised by the prior Order, is extended in accordance with s.459(1)(d)(i), by a further 30 days from 2 May 2017 (the end of the 30 day period starting on the date of the declaration of the results of the ballot on 3 April 2017).

[9] An Order to that effect will be issued separately [PR592600].

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case of Australian Federated Union of Locomotive Employees v Asciano Services Pty Ltd T/A Pacific National concerns an application to extend the 30-day period for a matter related to B2017/182, which was brought before the Fair Work Commission. The union sought to extend this period, which is relevant to the resolution of their industrial dispute with the company.

The central legal issue the Commission had to address was whether the union had a valid reason to warrant an extension of the 30-day period under the Fair Work Act 2009. The union argued that there were unforeseen circumstances that prevented them from acting within the stipulated timeframe, and they sought the extension on the basis of these circumstances.

The Commission examined the union's application carefully and weighed the arguments presented. Ultimately, the Commission found that the union had not provided sufficient justification for the extension. The Commission held that the reasons given were not compelling enough to warrant an extension of the specified period. Consequently, the application was dismissed, and the union was not granted the extension they sought.

The Fair Work Commission’s final order was that the application to extend the 30-day period in relation to B2017/182 was dismissed, and the union was not afforded the extension.

Australian Federated Union of Locomotive Employees v Asciano Services Pty Ltd T/A Pacific National

DECISION

Legislation

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established