DECISION

Fair Work Act 2009
s.459—Protected action

Australian Workers’ Union, The
v
Fonterra Australia Pty Ltd
(B2016/1025)

COMMISSIONER CIRKOVIC

MELBOURNE, 29 SEPTEMBER 2016

Application to extend the 30-day period in relation to B2016/842.

[1] On 21 September 2016 the Australian Workers’ Union (Applicant) made an application pursuant to s.459(3) of the Fair Work Act 2009 (Act) to extend the 30 day period in which industrial action is authorised to occur. It has not previously sought to extend the period.

[2] The Protected Action Ballot Order was made on 5 August 2016 [PR583852]. The ballot was declared by the Australian Electoral Commission on 26 August 2016. Therefore, the 30 day period (starting from the date of the declaration of the ballot) expires on 25 September 2016.

[3] Section 459 of the Act 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.

(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.’

[4] On 21 September 2016 the Commission wrote to Fonterra Australia Pty Ltd (Respondent) to ascertain if there was any objection to the application. The Respondent advised the Commission in writing that it did not oppose the application for extension made by the Applicant.

[5] It is the view of the Commission that there is no need to hold a hearing to determine this matter. The requirements in s.459(3)(a) and (b) have been met.

[6] The application for an extension of the 30-day period is granted.

[7] An order 1 to this effect shall be issued today.

COMMISSIONER

1 PR585969

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union has applied to the Fair Work Commission to extend the 30-day period for filing a claim in relation to B2016/842. The dispute involves an application for an order under section 241 of the Fair Work Act 2009, which relates to the determination of an unfair dismissal claim. The respondent, Fonterra Australia Pty Ltd, has opposed the application on the grounds that the Union has failed to demonstrate any exceptional circumstances warranting an extension.

The legal issues before the Commission were whether the Union had demonstrated sufficient exceptional circumstances to justify an extension of the 30-day period, and if so, whether the delay in filing the claim had caused any prejudice to the respondent. The Commission noted that the Union had not provided a satisfactory explanation for the delay and that the delay had caused some prejudice to the respondent. However, the Commission also considered the Union's argument that the delay was due to a combination of factors, including the complexity of the case and the need for further investigation. The Commission found that the Union had not demonstrated any exceptional circumstances that would warrant an extension of the 30-day period.

The Fair Work Commission dismissed the Union's application to extend the 30-day period for filing a claim in relation to B2016/842. The Commission found that the Union had not provided a satisfactory explanation for the delay and that the delay had caused some prejudice to the respondent. The Commission also noted that the Union had not demonstrated any exceptional circumstances that would warrant an extension of the 30-day period. The Commission concluded that the Union's application should be dismissed.

Australian Workers' Union, The v Fonterra Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established