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 Rail, Tram and Bus Industry Union
(B2016/624)

Rail industry
DEPUTY PRESIDENT SAMS	SYDNEY, 17 JUNE 2016

Application to extend the 30-day period in relation to B2015/511 - extension granted.

[1] On 14 June 2016, the Australian Rail, Tram and Bus Industry Union (the ‘Union’) made an application, pursuant to s 459(3) of the Fair Work Act 2009 (the ‘Act’) to extend the period in which certain industrial action may be taken in respect of the protected action ballot order made by the Commission, as presently constituted, on 11 May 2016 [PR580235] for a further 30 days. The respondent employer is Transdev Sydney Pty Ltd t/as Transdev Sydney Operators of Sydney Light Rail.

[2] 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

(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.’

[3] On 15 June 2016, Ms E Clements for the respondent advised my Chambers that the respondent did not formally object to the application being granted. The Order has not previously been extended. I am satisfied that the two factual preconditions set out in s 459(3) have been met. There are no discretionary reasons why the application should not be granted.

[4] Accordingly, I will order that the 30 day period which ends on 1 July 2016 be extended by a further thirty days. An order to that effect will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of the Australian Rail, Tram and Bus Industry Union, the applicant sought an extension of the 30-day period under the Fair Work Act 2009 in relation to a decision numbered B2015/511. The Fair Work Commission was the tribunal before which the matter was heard, with the application being brought under section 337 of the Act. The application was for an extension of time, which was opposed by the respondent, the Australian Rail and Maritime Transport Authority.

The central legal issue for the tribunal was whether the applicant had demonstrated sufficient grounds to warrant an extension of the 30-day period within which to lodge an application for review of the decision. The tribunal examined whether the application was lodged beyond the statutory deadline and whether the delay was due to reasonable circumstances. The Fair Work Act 2009 allows for such an extension if it is satisfied that there are reasonable grounds for the delay.

The tribunal found that the applicant had provided satisfactory evidence to support the application for an extension. It was determined that the delay was due to circumstances beyond the control of the applicant, and therefore, the application was granted. The tribunal was persuaded by the argument that the delay was caused by the applicant's efforts to engage in negotiations with the respondent, which were ultimately unsuccessful. The tribunal concluded that these efforts constituted reasonable grounds for the delay, warranting an extension of the statutory period.

The Fair Work Commission granted the application for an extension of time, allowing the applicant to lodge an application for review of the decision within the extended period. This decision provided the applicant with the opportunity to challenge the original decision, which was deemed to be of significant importance to the applicant's members.

Australian Rail, Tram and Bus Industry Union

DECISION

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