Australian Federated Union of Locomotive Employees v Australian Eastern Railroad Pty Ltd T/A AER

[2018] FWC 7763

[2018] FWC 7763

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

Australian Eastern Railroad Pty Ltd T/A AER

(B2018/1215)

Commissioner Spencer BRISBANE, 20 DECEMBER 2018

Application to extend the 30-day period in relation to B2018/909.

1. On 19 December 2018, the Australian Federated Union of Locomotive Employees (the Applicant) made an application pursuant to s.459(3) of the Fair Work Act 2009 (the Act) for an extension to the 30 day period in which industrial action is authorised by the protected action ballot order, made by the Commission as currently constituted on 12 October 2018 [PR701247]. This application seeks an extension pursuant to s.459(3) for a further 30 days. The Respondent is Australian Eastern Railroad Pty Ltd T/A AER (the Respondent).

LEGISLATION

1. 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.”

1. Section 459(3) of the Act confers 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 s.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.

1. The result of the ballot ordered by the Commission was declared by the Australian Electoral Commission on 23 November 2018.

1. On 20 December 2018, the Respondent was directed to provide if there was any objection to the application.

1. On the same day, Mr Mitch Patterson, Manager Employee Relations, Remuneration & Employee Relations, Corporate, for Aurizon, and the representative of the Respondent, sent correspondence to Chambers advising that the Respondent had no objection to the extension.

1. 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.

1. 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 29 days from 23 December 2018 (the end of the 30 day period starting on the date of the declaration of the results of the ballot on 23 November 2018).[1]

1. An Order to that effect will be issued separately [PR703389].

COMMISSIONER

<PR703391>

[1] AMACSU and Others v Flinders Operating Services Pty Ltd T/As Alinta Energy[2011] FWA 4617 per Bartel DP at [16].

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