Australian Maritime Officers' Union, The v Newcastle Port Corporation T/A Port Authority of New South Wales Summary

[2023] FWC 2965

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 Maritime Officers' Union, The
v

Newcastle Port Corporation T/A Port Authority Of New South Wales

(B2023/1239)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 13 NOVEMBER 2023

Application to extend the 30-day period in relation to B2023/959

This matter concerns the declaration of the result of a protected action ballot (PR766021) held in matter B2023/959 and declared on 18 October 2023.

The Australian Maritime Officers’ Union (AMOU or Applicant) has made an application pursuant to s.459(3) of the Fair Work Act 2009 (Act) to extend the 30-day period in which industrial action is authorised by the relevant protected action ballot.

Section 459(3) of the Act provides 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.”

The application made by the Applicant contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

The Newcastle Port Corporation T/A Port Authority of New South Wales (Respondent) has advised the Commission it has no objection to this application.

I am satisfied that the relevant requirements of the Act have been met and that the application should be granted.

Accordingly, pursuant to section 459(3) of the Act, I order that the 30-day period for the commencement of protected industrial action for eligible AMOU members employed by the Respondent be extended by a further 30 days.

This order will operate on and from 13 November 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Maritime Officers' Union (AMOU) sought an extension of the 30-day period for protected industrial action authorised by a ballot, in accordance with section 459 of the Fair Work Act 2009. This request was in relation to an earlier case, B2023/959, where a ballot was held and declared on 18 October 2023. The application was made against the Newcastle Port Corporation, trading as the Port Authority of New South Wales. The Commission was required to determine whether the statutory conditions for an extension were met and if the application should be granted.

The primary legal issue before the Commission was whether the AMOU's application complied with the requirements of section 459(3) of the Fair Work Act. This section allows for an extension of the 30-day period if the applicant has applied for the extension and the period has not previously been extended. The AMOU argued that it had fulfilled these conditions, and the Newcastle Port Corporation indicated it had no objection to the application. The Commission needed to consider if the statutory prerequisites were satisfied to justify the extension.

The Fair Work Commission, under Deputy President Wright, determined that the statutory conditions were indeed met. The AMOU's application was timely, and there had been no prior extension of the 30-day period. Given that the Respondent had no objections, the Commission was satisfied that the application should be granted. Consequently, the 30-day period for protected industrial action was extended by an additional 30 days, effective from 13 November 2023.

Pursuant to section 459(3) of the Fair Work Act, the Commission ordered that the 30-day period for the commencement of protected industrial action by eligible AMOU members employed by the Newcastle Port Corporation be extended by a further 30 days, starting from 13 November 2023. This decision ensures that the union can proceed with its industrial action within the extended timeframe, subject to the conditions outlined in the Act.

Australian Maritime Officers' Union, The v Newcastle Port Corporation T/A Port Authority of New South Wales

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established