Australian Workers' Union, The v Metal Manufactures Limited T/A Mm Kembla Summary

[2024] FWC 61

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
v

Metal Manufactures Limited T/A MM Kembla

(B2024/11)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 10 JANUARY 2024

Application to extend the 30 day period in relation to B2023/1079

This matter concerns the declaration of the result of a protected action ballot (PR767125) held in matter B2023/1079 and declared on 13 December 2023.

The Australian Workers’ Union (AWU) has 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 by the relevant protected action ballot.

Section 459(3) of the Act provides as follows:

“(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.”

The application made by the AWU contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

Metal Manufactures Limited T/A MM Kembla (MM Kembla) has not objected to this application.

I am satisfied that the relevant requirements of the Act have been met and that the application should be granted.

Accordingly, pursuant to section 459(3) of the Act, I order that the 30 day period for the commencement of protected industrial action for eligible AWU members employed by MM Kembla be extended by a further 30 days.

This order will operate on and from 10 January 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application by the Australian Workers’ Union (AWU) to the Fair Work Commission (FWC) for an extension of the 30-day period in which industrial action is authorised by a protected action ballot. This application arises in the context of the dispute between the AWU and Metal Manufactures Limited T/A MM Kembla (MM Kembla). The AWU sought to extend the time frame for initiating protected industrial action as authorised by the ballot, which was held and declared on 13 December 2023. MM Kembla did not object to the AWU's application.

The primary legal issue for the FWC to determine was whether the AWU's application complied with the requirements set out in section 459(3) of the Fair Work Act 2009. Specifically, the court needed to ascertain if the AWU had met the conditions for an extension, including that the period had not been previously extended and that the application was made by an applicant for the protected action ballot order. Given that MM Kembla did not contest the application and that the AWU's application satisfied the statutory criteria, the FWC had to decide whether the extension should be granted.

In its decision, the FWC found that the AWU's application met all the statutory requirements for an extension under section 459(3) of the Act. Deputy President Wright noted that MM Kembla had not raised any objections, and there was no indication that the 30-day period had been extended before. Consequently, the Deputy President concluded that the application should be granted. The court ordered that the 30-day period for the commencement of protected industrial action be extended by an additional 30 days, effective from 10 January 2024. This ruling allows eligible AWU members to commence industrial action within the extended period as authorised by the ballot.

Australian Workers' Union, The v Metal Manufactures Limited T/A Mm Kembla

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established