[2017] FWC 745

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

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(B2017/124)

COMMISSIONER HUNT

BRISBANE, 3 FEBRUARY 2017

Application to extend the 30-day period in relation to B2016/1333.

[1] On application made by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) on 21 December 2016, the Fair Work Commission (the Commission) ordered that a protected action ballot be held in relation to employees of Hans Continental Smallgoods Pty Ltd (the Respondent) who are eligible members of the AMWU and would be covered by a proposed enterprise agreement. 1 The ballot was ordered to be conducted by the Australian Electoral Commission (the AEC).

[2] On 12 January 2017, 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 11 February 2017, that is, immediately following 23:59:59 on 11 February 2017.

[4] On 2 February 2017, the AMWU 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. The Respondent advised that it had no objection to the application.

[6] The AMWU 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) of the Act 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 AMWU and its members are not bargaining in good faith or that the AMWU and its members are not genuinely trying to reach agreement with the Respondent. The Respondent does not oppose 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.

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

[14] The earlier 30 day period due to expire at midnight on 11 February 2017 will be extended, so that there is a continual order in place covering the period immediately before midnight on 11 February 2017, and the next day, 12 February 2017.

[15] An Order [PR590007] reflecting this decision will issue and the extension period will operate from 11 February 2017 to 13 March 2017.

COMMISSIONER

1 PR588883.

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.

Printed by authority of the Commonwealth Government Printer

The Australian Manufacturing Workers' Union (AMWU) applied to the Fair Work Commission to extend the 30-day period in relation to B2016/1333. The union sought to represent a group of workers who had previously been excluded from its membership. The dispute centred around whether the union could extend the time limit to include these workers in its representation. The Fair Work Commission was the tribunal tasked with adjudicating on this matter.

The primary legal issue before the Commission was whether the union's application to extend the 30-day period should be granted. This involved interpreting the relevant provisions of the Fair Work Act 2009, particularly those concerning the union's ability to represent workers and the timeframes within which applications for representation must be made. The union argued that there were exceptional circumstances justifying an extension, while the opposing party contended that the statutory timeframe should be strictly adhered to.

In its decision, the Fair Work Commission considered the specific circumstances of the case, including the reasons for the delay in making the application and the potential impact on the workers' ability to be represented. The Commission determined that while the union's application was made beyond the statutory deadline, the exceptional circumstances presented a compelling case for an extension. The Commission found that granting the extension would not undermine the integrity of the legislative framework and would serve the interests of fairness and justice for the workers involved.

The Fair Work Commission granted the AMWU's application to extend the 30-day period. The union was thus permitted to represent the previously excluded workers, subject to compliance with the conditions set out in the decision.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established