Australian Workers' Union, The

[2016] FWC 8195

[2016] FWC 8195

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 Workers' Union, The
(B2016/1193)

COMMISSIONER HUNT BRISBANE, 15 NOVEMBER 2016

Application to extend the 30-day period in relation to B2016/933.

[1] On application made by The Australian Workers’ Union (AWU) on 26 September 2016, the Fair Work Commission (the Commission) ordered that a protected action ballot be held in relation to employees of ACI Operations Pty Ltd T/A O-I Glass (the Respondent) who are eligible members of the AWU and would be covered by a proposed enterprise agreement and who have not appointed someone other than the AWU to be their bargaining representative. 1 The ballot was ordered to be conducted by the Australian Electoral Commission (the AEC).

[2] On 20 October 2016, the AEC issued a formal declaration of results in relation to the ballot. The ballot declared that the action was approved by employees participating in the ballot. By virtue of s.459(1)(d)(i) of the Fair Work Act 2009 (the Act), industrial action was authorised by that ballot if it commenced during the 30-day period starting on this date.

[3] The 30 day period expires at midnight on 18 November 2016, that is, immediately following 23:59:59 on 18 November 2016.

[4] On 10 November 2016, the AWU made an application pursuant to s.459(3) of the Act for an extension to the 30 day period in which industrial action is authorised by protected action ballot.

[5] The Commission sought the Respondent’s position as to the application and requested a response by no later than 4:00pm on 14 November 2016. The Respondent was advised that if no response was received by that time, I would consider the application on the material before me. The Respondent has not advised of its position.

[6] The AWU submitted that the application for an extension of the period has been made during 30-day period starting on the date of the declaration of results by the AEC and that the protected action period has not previously been extended.

Legislation

[7] Section 459(1) deals with circumstances in which industrial actions is authorised by a protected action ballot and provides 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.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.’

[8] Section 459(3) provides that the Commission may extend the 30 day period in the following terms:

‘(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.’

Consideration

[9] Section 459(1) establishes a 30 day period where the right to take industrial action authorised by a protected action ballot will end on the effluxion of time. Section 459(3) gives the Commission a discretionary power to extend the 30 day period.

[10] In a decision for an extension to the 30 day period in which industrial action is authorised by a protected action ballot, Deputy President Asbury held: 2

‘It has been held that the discretion should be exercised in situations where it can be demonstrated that bargaining is proceeding and an extension is consistent with the objects of the Act as specified in s.436. 3 The discretion is wide and is unconditioned by a statutory direction.4 Parliament has provided for a one off extension without the need for a further ballot, and cogent reasons are required to refuse an application for an extension, such as a change in disposition or composition of employees.5

Circumstances in which an extension has been granted are that parties are bargaining in good faith; there is not a lengthy delay between the expiry of the original 30 day period and the application for an extension being made; 6 parties have participated in conciliation during the original 30 day period;7 or have refrained from taking industrial action and bargained constructively.8 It is also the case that if an overly restrictive view is taken of the circumstances in which the discretion will be exercised, the result will be that industrial action may be taken in a number of forms during the initial 30 day period, simply to preserve the right to take it after that period has expired. This outcome is not consistent with the objects in s.436 of the Act of establishing a fair and simple process.’

Conclusions

[11] There is no evidence to suggest that the AWU and its members are not bargaining in good faith or that the AWU and its members are not genuinely trying to reach agreement with the Respondent. The Respondent has not indicated its position in relation to the application.

[12] The granting of an extension is a discretionary decision. I note that the Commission is not obliged to automatically grant an extension of 30 days. Section 459(3) allows for an extension of up to 30 days. I am satisfied that a full 30 day extension is appropriate on the material before the Commission and the absence of evidence from the Respondent as to why the extension should not be granted for 30 days.

[13] Accordingly, the application for an extension is granted.

[14] The earlier 30 day period due to expire at midnight on 18 November 2016 will be extended, so that there is a continual order in place covering the period immediately before midnight on 18 November 2016, and the next day, 19 November 2016.

[15] An Order [PR587550] reflecting this decision will issue and the extension period will operate from 19 November 2016 to 18 December 2016.

COMMISSIONER

 1   PR585611.

 2   AMWU v Mulgrave Central Mill Company Limited[2016] FWC 4976 at [9]-[10].

 3   National Union of Workers v Symbion Pharmacy Services Pty Ltd [2009] FWA 1284 per O’Callaghan SDP at [11].

 4   Re: Transport Workers’ Union of Australia [2011] FWA 1097 per Lewin C.

 5   MUA v DP World Adelaide Pty Ltd [2010] FWA 7638 per Hampton C.

 6   National Union of Workers v Symbion Pharmacy Services Pty Ltd op. cit.

 7   AMACSU and Others v Flinders Operating Services Pty Ltd T/As Alinta Energy [2011] FWA 4617 per Bartel DP.

 8   MUA v DP World Adelaide Pty Ltd op. cit.

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