Australian Institute of Marine and Power Engineers, The v Smit Marine Australia Pty Ltd

[2012] FWA 5877

[2012] FWA 5877

FAIR WORK AUSTRALIA

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 Institute of Marine and Power Engineers, The
v
SMIT Marine Australia Pty Ltd
(B2012/1106)

COMMISSIONER BOOTH GLADSTONE, 12 JULY 2012

Application to extend the 30-day period in relation to B2012/126.

[1] On 9 July 2012, The Australian Institute of Marine and Power Engineers (AIMPE) made an application under s.459(3) of the Fair Work Act 2009 (the Act) to extend the period in which certain industrial action is to commence for purposes of s.459(1)(d)(ii) of the Act in respect of the B2012/126. The relevant employer is SMIT Marine Australia Pty Ltd.

[2] Section 459 of the Act reads 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 FWA has extended that period under subsection (3)—during the extended period.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

(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) FWA 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 FWA for the period to be extended; and

(b) the period has not previously been extended.

[3] Section 459(3) of the Act vests a discretion in Fair Work Australia (FWA) in respect of whether to grant such an application upon the two factual preconditions (at s.459(3)(a) and 459(3)(b) of the Act) being made out.

[4] The employer provided a written response on 12 July 2012 to the Application and indicated that it did not oppose an extension of time. However the Employer reserved its right concerning any future industrial action.

[5] Neither party sought a hearing in relation to this application. I have made a determination on the papers.

[6] The parties have sought an extension of 30 days so that they may conduct further negotiations. These negotiations are presently taking place.

[7] There does not appear to me, therefore, to be any evidence before me that would dissuade me from exercising my discretion in favour of the Applicant.

[8] I therefore order that the 30-day period referred to in s.459(1)(d)(i) of the Act be extended by a further 30 days.

[9] An order to that effect will issue simultaneously with this decision.

COMMISSIONER

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