Australian Rail, Tram and Bus Industry Union v Pacific National (Qld) Pty Ltd

[2022] FWC 2136

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Australian Rail, Tram and Bus Industry Union

Pacific National (Qld) Pty Ltd

(B2022/1203)

VICE PRESIDENT CATANZARITI

SYDNEY, 11 AUGUST 2022

Application to extend the 30 day period in relation to B2022/510

On 9 August 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, PR742252 made on 2 June 2022. The Order applies to certain employees of Pacific National (Qld) 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 13 July 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 11 August 2022.

On 10 August 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 11 August 2022, the extension period will operate from 11 August 2022.

An order has been separately issued in PR744703.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Rail, Tram and Bus Industry Union, acting on behalf of its members employed by Pacific National (Qld) Pty Ltd, applied to the Fair Work Commission to extend the 30-day period for protected action as authorised by a ballot order issued earlier this year. The union sought the extension under section 459(3) of the Fair Work Act 2009 (Cth) and the application was filed with the Commission on 9 August 2022. The union’s application came after the results of a ballot held among its members were declared on 13 July 2022. Pursuant to section 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 11 August 2022.

The Commission was required to determine whether the union met the requirements for an extension of the period for protected action, including whether the union had applied within the timeframe prescribed by section 459(3) of the Act, and whether the 30-day period had not previously been extended. The Commission also considered whether the union had met any other requirements of the Act that were relevant to the granting of an extension. The respondent, Pacific National (Qld) Pty Ltd, did not oppose the union’s application to extend the period for protected action.

The Commission determined that the union met the requirements of section 459(3) of the Act and that an extension of the 30-day period for protected action was appropriate. The Commission noted that the union had applied for the extension within the timeframe prescribed by section 459(3) of the Act and that the 30-day period had not previously been extended. The Commission also found that the union had met any other requirements of the Act relevant to the granting of an extension. Accordingly, the Commission extended the 30-day period for protected action to expire at midnight on 11 September 2022. An order was issued in PR744703.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established