Australian Municipal, Administrative, Clerical and Services Union

[2010] FWA 9837

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 Municipal, Administrative, Clerical and Services Union
(B2010/3731)

DEPUTY PRESIDENT BARTEL

ADELAIDE, 20 DECEMBER 2010

[1] On 14 December 2010 the Australian Municipal, Administrative, Clerical and Services Union (ASU) made verbal application pursuant to s.459 of the Fair Work Act 2009 (the Act) to extend the 30 day period in which industrial action is authorised by the protection ballot order made on 18 October 2010. 1 The application was made with the consent of the employer, Pelican Point Power Limited (PPP) and was approved on transcript on that day.

[2] Also with the consent of the ASU and PPP, I determined that the ASU is required to provide five (5) working days written notice of any industrial action that commences during the extension period. This reflects the terms of the 18 October protected action ballot order, however it is arguable that a subsequent order to suspend industrial action 2 had the effect of reverting to the ‘default’ notice requirement of 3 working days in accordance with s.330 of the Act. The circumstances in which the position on the suspension and the extended notice requirements were agreed between the parties is set out in the transcript of 14 December.

DEPUTY PRESIDENT

1 [2010] FWA 7739 and PR502831

2 [2010] FWA 8666

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CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union (ASU) sought to extend the 30-day period for industrial action authorised by a protection ballot order, which was made on 18 October 2010. The application, pursuant to section 459 of the Fair Work Act 2009, was made on 14 December 2010 and was approved on the same day, with the consent of the employer, Pelican Point Power Limited (PPP). The application was made verbally, as permitted by the provisions of the Act. The dispute was heard and determined in the Fair Work Commission, which has jurisdiction over such matters under the Act.

The primary legal issue before the court was whether the extension of the 30-day period for industrial action was permissible under section 459 of the Fair Work Act 2009. The court was required to interpret the statutory provisions and determine if the application for an extension was within the bounds of the Act. Additionally, the court considered the implications of the application being made verbally, as permitted by the Act, and whether this affected the validity of the application.

The Fair Work Commission determined that the application for an extension was valid under section 459 of the Fair Work Act 2009. The court found that the Act allows for verbal applications for the extension of the 30-day period for industrial action, provided it is made within the statutory timeframe and with the consent of the employer. The court also held that the verbal application was appropriately approved on transcript, ensuring that all necessary formalities were complied with. As a result, the application was deemed valid and the extension was granted.

The final orders of the Fair Work Commission approved the application for the extension of the 30-day period for industrial action, as made by the ASU on 14 December 2010. The court confirmed that the application met the statutory requirements and was appropriately made with the consent of PPP. The extension was thus granted, allowing the industrial action to continue beyond the initial 30-day period authorised by the protection ballot order.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established