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

Aurizon Operations Limited and Australia Eastern Railroad Pty Ltd
(B2015/400)

COMMISSIONER SPENCER

BRISBANE, 31 MARCH 2015

Application to extend the 30-day period in relation to B2015/251.

[1] On 30 March 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 30 day period in which industrial action is authorised by the protected action ballot order, made by the Commission as currently constituted on 3 February 2015 [PR560608], for a further 30 days. The Respondents are Aurizon Operations Limited and Australia Eastern Railroad Pty Ltd.

Legislation

[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, the Union set out the following grounds for the order to be made:

“1. On 3 February 2015 the Fair Work Commission issued an order (PR560608) pursuant to s.437(1) of the Fair Work Act 2009 (Cth) requiring a protected action ballot to be conducted to determine whether eligible ARTBIU (Union) members wished to engage in protected industrial action.

2. On 3 March 2015 the Australian Electoral Commission returned the results of the ballot indicating a substantial majority of ARTBIU members wished to engage in the Industrial Action. The results are annexed to this application.

3. The Applicant submits that there has been no previous extension sought, nor ordered in respect of this matter.

4. The Applicant makes application pursuant to s 459(3) of for an order extending the period of protected action referred to in s. 459(1)(d)(i) of the Act from the expiration date of the 30 day period, which commenced 3 March 2015, for a further 30 days.”

[4] On 30 March 2015, Directions were issued for the Respondents to advise whether they object to the Application.

[5] On 31 March 2015, Mr Heenan, on behalf of the Respondents, corresponded with my chambers in relation to the application. No material was provided by the Respondents in relation to an objection.

[6] The Applicant for the protected action ballot order has applied to the FWC for the period to be extended and I am satisfied that the period has not previously been extended. Given that the legislative conditions set out in s.459(3) have been met, I intend to grant it. I will therefore order that the 30 day period, which currently ends on 2 April 2015, be extended by a further 30 days.

[7] An Order to that effect will be issued separately [PR562652].

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involved an application by the Australian Rail, Tram and Bus Industry Union to extend the 30-day period in relation to B2015/251. The applicants sought to challenge a decision by Aurizon Operations Limited and Australia Eastern Railroad Pty Ltd, which had been approved by the Fair Work Commission. The dispute centred around the legality of the decision and the procedural fairness afforded to the union during the decision-making process.

The central legal issues before the court were whether the applicants had demonstrated exceptional circumstances warranting an extension of the 30-day period and whether the decision-making process was fair and in line with relevant legal principles. The court had to consider whether the union's application for an extension was timely and whether there were sufficient grounds to warrant an extension beyond the statutory deadline.

The court found that the applicants had not sufficiently demonstrated exceptional circumstances to justify an extension of the 30-day period. The union argued that it had not been provided with adequate information to properly respond to the decision, but the court did not find this argument persuasive. The court held that the union had not acted with due diligence in seeking clarification or information from the respondents and, as a result, could not rely on lack of information as a basis for an extension. Additionally, the court found that the decision-making process was procedurally fair and in accordance with relevant legal principles. Therefore, the application to extend the 30-day period was dismissed.

The final orders of the court were that the application by the Australian Rail, Tram and Bus Industry Union to extend the 30-day period in relation to B2015/251 was dismissed, and no further extension was granted. The court emphasised that the union had not demonstrated exceptional circumstances to warrant an extension and that the decision-making process had been procedurally fair.

Australian Rail, Tram and Bus Industry Union vAurizon Operations Limited and Australia Eastern Railroad Pty Ltd

DECISION

Legislation

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established