Australian Rail, Tram and Bus Industry Union v Keolis Downer Hunter Pty Ltd

[2022] FWC 1248

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Australian Rail, Tram and Bus Industry Union

Keolis Downer Hunter Pty Ltd

(B2022/466)

VICE PRESIDENT CATANZARITI

SYDNEY, 20 MAY 2022

Application to extend the 30 day period in relation to B2022/267

On 19 May 2022, the Australian Rail, Tram and Bus Industry Union (Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s. 459(3) of the Fair Work Act 2009 (Cth) (the Act) to extend the 30 day period for protected action authorised by a protected action ballot order, PR740163 made on 8 April 2022. The Order applies to certain employees of Keolis Downer Hunter Pty Ltd (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 27 April 2022. Pursuant to s. 459(1)(d)(i) of the Act, the 30 day period for protected action commenced on the date of the declaration of the results of the ballot and therefore expires at midnight on 26 May 2022.

On 20 May 2022, the Respondent advised the Commission via email that it does not oppose the Australian Rail, Tram and Bus Industry Union’s application to extend the 30 day period for protected industrial action. Accordingly, I have determined the matter on the basis of the documentation filed.

In addressing s.459(3) of the Act, this application is made by the Australian Rail, Tram and Bus Industry Union who is the Applicant for which the protected action ballot order was issued. Furthermore, the period specified in s.459(1)(d)(i) has not been previously extended.

On that basis and on the material before me, I am satisfied that each of the relevant requirements of s.459 of the Act have been met and that a 30 day extension is appropriate. As the 30 day period expires at midnight on 26 May 2022, the extension period will operate from 26 May 2022.

An order has been separately issued in PR741840.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Rail, Tram and Bus Industry Union, as the applicant, applied to the Fair Work Commission for an extension of the 30-day period for protected industrial action authorised by a ballot order issued on April 8, 2022. The order pertains to certain employees of Keolis Downer Hunter Pty Ltd, the respondent. The ballot results were declared on April 27, 2022, and the 30-day period for protected action was set to expire on May 26, 2022. Keolis Downer Hunter Pty Ltd did not oppose the application for an extension.

The central legal issue in this case was whether the 30-day period for protected action could be extended in accordance with section 459(3) of the Fair Work Act 2009. This section provides the mechanism for extending the period if certain conditions are met. The applicant had to demonstrate that the requirements of section 459 of the Act were satisfied and that an extension was appropriate. Furthermore, the applicant had to show that the specified period had not been previously extended.

The Vice President of the Fair Work Commission, Catanzariti, reviewed the application and the material provided. The applicant had met all the necessary requirements under section 459 of the Act, and an extension was deemed appropriate. Given that the 30-day period was set to expire at midnight on May 26, 2022, the extension would commence from that date. An order was subsequently issued in PR741840, granting the requested extension.

In summary, the Fair Work Commission granted the application for an extension of the 30-day period for protected industrial action. The extension was effective from May 26, 2022, and was made in accordance with section 459(3) of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established