Australian Federated Union of Locomotive Employees v Aurizon Operations Limited

[2015] FWC 845

[2015] FWC 845

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

Australian Federated Union of Locomotive Employees
v
Aurizon Operations Limited
(B2015/260)

COMMISSIONER SPENCER BRISBANE, 4 FEBRUARY 2015

Application to extend the 30-day period in relation to B2014/1648.

[1] On 3 February 2015, the Australian Federated Union of Locomotive Employees (the ‘Union’) made an application, pursuant to s.459(3) of the Fair Work Act 2009 (the ‘Act’), to extend the 30 day period in which industrial action is authorised by the protected action ballot order, made by the Commission as currently constituted on 2 December 2014 [PR558398], for a further 30 days. The Respondent is Aurizon Operations Limited.

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). In the application, the Union set out the following grounds for the order to be made:

“1. On 2 December 2014 the Fair Work Commission issued an order (PR558398) pursuant to s.437(1) of the Fair Work Act 2009 (Cth) requiring a protected action ballot to be conducted to determine whether eligible AFULE members wished to engage in protected industrial action.

2. On 7 January 2015 the Australian Electoral Commission returned the results of the ballot indicating a substantial majority of AFULE members wished to engage in the Industrial Action. The results are annexed to this application and marked “AFULE 1”.

3. The Applicant has not to date taken any protected action and does not foresee taking action prior to the expiration of the 30 day protected action period.

4. The Applicant makes application pursuant to s 459(3) of for an order extending the period of protected action referred to in s. 459(1)(d)(i) of the Act from the expiration date of the 30 day period, which commenced 7 January 2015, for a further 30 days.”

[4] On 4 February 2015, Mr Heenan, on behalf of the Respondent, corresponded with my chambers advising that the Respondent neither consented to nor opposed the application made by the Applicant.

[5] The Applicant for the protected action ballot order has applied to the FWC for the period to be extended and I am satisfied that the period has not previously been extended. Given that the two factual preconditions set out in s.459(3) have been met, and that there are no considerations which would weigh against my discretion to refuse the application, I intend to grant it. I will therefore order that the 30 day period, which currently ends on 5 February 2015, be extended by a further 30 days.

[6] An Order to that effect will be issued separately [PR560719].

COMMISSIONER

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<Price code A, PR560717>