Australian Workers' Union v Otway Coast Committee Incorporated

[2019] FWC 111

[2019] FWC 111

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459—Protected action

Australian Workers’ Union
v
Otway Coast Committee Incorporated
(B2018/1191)

DEPUTY PRESIDENT COLMAN MELBOURNE, 9 JANUARY 2019

Application to extend the 30-day period for the commencement of protected industrial action.

[1] The Australian Workers’ Union (AWU) has made an application under s 459(3) of the Fair Work Act 2009 (Act) for an order to extend the 30-day period within which protected industrial action must commence. On 24 December 2018, I issued an order extending the 30 day period. I advised the parties that my reasons for issuing the order would be published later. Those reasons are as follows.

[2] The AWU is a bargaining representative for a proposed enterprise agreement to cover certain employees of Otway Coast Committee Incorporated (OCC).

[3] On 24 October 2018, Senior Deputy President Hamberger issued an order for a ballot of employees who are employed by OCC and represented by the AWU as bargaining representative, and who would be covered by a proposed agreement. Pursuant to the order [PR701707], the ballot was conducted by the Australian Electoral Commission (AEC). The results of the ballot were declared on 22 November 2018.

[4] There were nine questions posed by the ballot, seeking authorisation of particular forms of proposed industrial action. The results of the ballot in respect of each of the forms of industrial action are set out in the declaration, but in summary, all employees included on the roll of voters participated in the vote, and employees voted to authorise each of the forms of industrial action.

[5] Section 459 of the Act relevantly provides that industrial action by employees is authorised by a protected action ballot if the action commences during the 30 day period starting on the day of the declaration of the results of the ballot or, if the period has been extended by the Commission, during the extended period.

[6] Some but not all of the forms of industrial action authorised by the ballot have been engaged in by employees during the 30 day period. The AWU’s application seeks an extension of that period.

[7] In brief written submissions in support of its application, the AWU contended that employees wish to preserve their ability to engage in additional types of protected industrial action authorised by the ballot and, if they consider it appropriate, to escalate their campaign of protected industrial action. The union submitted that employees should not be prejudiced for having thus far shown restraint and confined their protected action to low level action, such as partial work bans and brief stoppages. The AWU said that, if an extension were not granted, it would make a new application for a protected action ballot order under s 437 of the Act, which would result in a further ballot being conducted. It said that this would entail unnecessary time and expense. The union submitted that it has been and is genuinely trying to reach an agreement with OCC and that there is no extraneous reason for its application to extend the 30 day period. Finally, AWU contended that granting the extension would be consistent with the objects of the Act and the requirements that govern the performance of the Commission’s functions (see sections 577 and 578).

[8] OCC opposed the grant of an extension. It contended that there was nothing in the AWU’s submission that warranted an extension of the 30-day period under s 459(3). It submitted that the ordinary period within which industrial action must commence is 30 days, as provided in s 459(1)(d)(i), and that this period should only be extended if there is a good reason, such as the 30-day period spanning a shut-down, or there being some other circumstance that would cause disadvantage to the relevant employees if an extension were not granted. OCC contended that the AWU had not pointed to any such reason or circumstance.

[9] Section 459(3) provides the Commission with a discretion to extend the period within which protected industrial action must commence by up to 30 days if the applicant for a protected action ballot order applies for the period to be extended, and that period has not previously been extended. The AWU is a bargaining representative and was the applicant for the protected action ballot order. It has made a valid application for an extension of the 30-day period. The period has not previously been extended. The jurisdictional prerequisites for extending the 30-day period are satisfied in this case.

[10] Section 459(3) contains two discretionary elements. The first concerns the question of whether to extend the 30-day period, and the second is to determine the period of the extension. If the Commission is minded to extend the period, the latter discretion is confined so that the period of extension can be no greater than 30 days.

[11] The discretion conferred on the Commission under s 459(3) is to be exercised having regard to the evident statutory purpose of the provision, read in the context of Part 3-3 and the Act as a whole, and taking into account the circumstances of the relevant application. I note that the object of the Division 8 of Part 3-3, in which s 459(3) appears, is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement (s 436).

[12] I have determined that it is appropriate to exercise my discretion to extend the 30-day period in this case. First, it is not disputed that the AWU has been and is genuinely trying to reach agreement with the company. Although no formal evidence has been adduced, the parties’ description of the negotiations to date is consistent with the AWU’s contention that it has been and is genuinely trying to reach agreement. I have no reason to doubt that, should the AWU apply for a further protected action ballot order, the application would be granted. In such circumstances, and absent any countervailing factor, to put the AWU to the task of seeking a fresh protected action ballot order would be incompatible with the object of Division 8 of Part 3-3. Secondly, I do not consider that the Act requires an applicant under s 459(3) to establish that there is some special circumstance, or disadvantage that would otherwise accrue to employees. Section 459(3) confers a broad discretion, unlike other provisions in the Act where the exercise of discretion is circumscribed (for example, by reference to the presence of ‘exceptional circumstances’ – see sections 366(2) and 394(3)). Thirdly, I cannot identify any consideration that tells against the exercise of the discretion. For example, there is no suggestion that the composition of the workforce has changed in any significant way so as to suggest that a further protected action ballot application might be warranted.

[13] I take into account the cost, inconvenience and delay that would be associated with a further protected action ballot application, and the fact that there is no evidence of any change in the circumstances that would be relevant to the consideration of a further ballot application. These matters also weigh in favour of the exercise of my discretion to grant an extension.

[14] I consider it appropriate to extend the 30-day period in s 459(1)(d)(i). That then brings me to the question of the period of the extension. No party made submission about the length of the extension. In the circumstances I consider that it is appropriate to extend the period by 30 days.

[15] For these reasons, I grant the AWU’s application to extend the 30-day period under s 459(3). That period is extended by a further 30 days.

[16] An order has separately been issued in PR703505.

DEPUTY PRESIDENT

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