Australian Municipal, Administrative, Clerical and Services Union v Sydney Water Corporation T/A Sydney Water

[2023] FWC 2849

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 Municipal, Administrative, Clerical and Services Union
v

Sydney Water Corporation T/A Sydney Water

(B2023/1177)

DEPUTY PRESIDENT HAMPTON

SYDNEY, 30 OCTOBER 2023

Application to extend the 30 day period in relation to B2023/977

This matter concerns the declaration of the result of a protected action ballot (PR766198) held in matter B2023/977 and declared on 29 September 2023.

The Australian Municipal, Administrative, Clerical and Services Union (ASU) 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 ASU contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

The Respondent has not advised the Commission of any 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 ASU members employed by Sydney Water Corporation T/A Sydney Water be extended by a further 30 days.

This order will operate on and from 30 October 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application from the Australian Municipal, Administrative, Clerical and Services Union (ASU) to extend the 30-day period for initiating industrial action following the declaration of a protected action ballot. The application was made under section 459(3) of the Fair Work Act 2009, and the respondent, Sydney Water Corporation T/A Sydney Water, did not oppose the application. The dispute arose from the outcome of a ballot held in matter B2023/977, which was declared on 29 September 2023. The ASU sought an extension of the 30-day period for commencing protected industrial action for eligible ASU members employed by Sydney Water Corporation.

The legal issues before the court were whether the requirements of section 459(3) of the Fair Work Act 2009 were satisfied, specifically whether the application was made by an applicant for the protected action ballot order and whether the period had not been previously extended. The Deputy President Hampton found that the ASU had met the requirements of the Act, and accordingly, granted the application. The decision hinged on the interpretation of the statutory provisions and the fact that the respondent had not raised any objections.

The Deputy President Hampton concluded that the application should be granted as all statutory requirements were met. The 30-day period for the commencement of protected industrial action was extended by a further 30 days, effective from 30 October 2023. This decision was based on the explicit provisions of the Fair Work Act and the absence of any objections from the respondent. The extension allows the ASU to continue negotiations and potentially resolve the industrial dispute without the immediate threat of industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established