Australian Workers' Union, The v Santos WA Energy Ltd

[2022] FWC 2097

[2022] FWC 2097

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Australian Workers’ Union, The
v

Santos WA Energy Ltd

(B2022/1169)

DEPUTY PRESIDENT DEAN CANBERRA, 8 AUGUST 2022

Application to extend the 30 day period in relation to B2022/1169

1. On 3 August 2022, The Australian Workers’ Union (Union) made an application to the Fair Work Commission pursuant to s. 459(3) of the Fair Work Act 2009 (Cth) (Act) to extend the 30 day period for protected action authorised by a protected action ballot order, PR742876, made on 21 June 2022. The Order applies to certain employees of Santos WA Energy Ltd (the Respondent).

1. The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 4 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 expired at midnight on 2 August 2022.

1. The Respondent opposed the Union’s application to extend the 30 day period for protected action. A hearing was held on 8 August 2022. Mr Z Duncalfe, National Legal Officer, appeared for the Union and Mr G Giorgi, lawyer, was given permission to appear for the Respondent.

1. Mr N Vitanza gave evidence on behalf of the Respondent and both parties made extensive submissions.

1. Essentially, the Respondent contended that the Commission should not exercise its discretion to extend the 30 day period due to:

a.The delay by the Union in filing this application;

b.The Union’s non-compliance with good faith bargaining obligations;

c.A loss of willingness among the majority of employees to take protected industrial action; and

d.A threat to take unprotected industrial action.

1. At the conclusion of the evidence and submissions, the parties agreed to take part in a private conference prior to the end of the hearing. The outcome of the conference was that the Respondent agreed to withdraw its objection to the application on the basis that the Union would immediately cease the personal attacks (described by the Respondent as “disrespectful, defamatory and gendered statements”) it had made publicly via a Facebook page in relation to Ms A Trethewey, and no protected action would commence prior to 10 August 2022.

1. Mr Duncalfe confirmed on record that he was authorised to provide an undertaking to this effect on behalf of the Union, and subsequently did so orally.

1. Otherwise, in addressing s.459(3) of the Act, this application is made by the 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.

1. Based on the above and 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 expired at midnight on 2 August 2022, the extension period will operate from 2 August 2022.

1. An order has been separately issued in PR744593.

DEPUTY PRESIDENT

Appearances:

Z Duncalfe for the Applicant.
G Giorgi for the Respondent.

Hearing details:

2022.

Perth and Canberra (by telephone): 
August 8

Printed by authority of the Commonwealth Government Printer

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