Australian Rail, Tram and Bus Industry Union v Aurizon Operations Limited

[2015] FWC 117

[2015] FWC 117

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 Rail, Tram and Bus Industry Union
v
Aurizon Operations Limited
(B2015/3)

DEPUTY PRESIDENT SAMS SYDNEY, 8 JANUARY 2015

Application to extend the 30-day period in relation to B2014/1579 - application granted..

[1] On 7 January 2015, 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 Commissioner Spencer on 12 November 2014 [PR557695] for a further 30 days with application to Questions 3 and 5 in the ballot covered by that order. The respondent employer is Aurizon Operations Limited.

[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

(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 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] Section 459(3) of the Act confers a discretion on the Commission as to whether to grant such an application upon satisfaction as to the two factual preconditions set out in sub-sections (a) and (b). In the application, Mr O Doogan for the Union set out the following grounds for the order to be made:

‘1. The Fair Work Commission made an Order in B2014/1579 (the “Order”) that the 30 day period of the taking of Protected Industrial Act shall commence on the 10th of December 2014.

2. Pursuant to the Order the expiry of the 30 day period is the 8th of January 2014.

3. During the period of the Order the RTBU has properly notified and members have taken employee claim action pursuant to Questions 3 and Question 5 of the Order.

4. Question 3 is as follows:

“An unlimited number of indefinite or periodic bans on the working of overtime, in all or part of the workplace?”

5. Question 5 is as follows

“An unlimited number of indefinite or periodic bans on the working of overtime, in all or part of the workplace?”

6. The Order has not previously been extended.

7. The RTBU, having satisfied the requirements Sn 459 (3), respectfully requests that the Order be extended for a further 30 days in the terms set out in part 2.1 of this Application.’

[4] On 7 January 2015, Mr M Heenan for the respondent corresponded with my chambers advising that the respondent did not object or consent to the application being granted. Its position is therefore completely neutral.

[5] Given that the two factual preconditions set out in s 459(3) have been met and that there are no considerations which would militate against my discretion to refuse the application, I intend to grant it. I will therefore order that the 30 day period which ends on 8 January 2015 be extended by a further 30 days.

[6] An order to that effect will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

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