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

[2015] FWC 5487

[2015] FWC 5487

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)
(B2015/1169)

DEPUTY PRESIDENT ASBURY BRISBANE, 11 AUGUST 2015

Application to extend the 30-day period in relation to B2015/602.

Background

[1] On application of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), on 17 June 2015 the Commission as presently constituted ordered that a protected action ballot be held in relation to employees of FNQ Sugar Services Pty Ltd (the Respondent) who are eligible members of the AMWU, who are covered by the Innisfail Babinda Regional Mills Enterprise Bargaining Agreement 2012 and would be covered by the proposed agreement. 1 The ballot was ordered to be conducted by the Australian Electoral Commission (the AEC).

[2] On 13 July 2015, 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 Act, industrial action was authorised by that ballot if it commenced during the 30-day period starting on this date.

[3] On 7 August 2015, the AMWU made an application under s.459(3) of the Fair Work Act 2009 (the Act) for an extension to the 30 day period in which industrial action is authorised by protected action ballot. The application sought an order in relation to employees of the Respondent whose terms and conditions of employment will be covered by the proposed agreement.

[4] By email of 7 August 2015, the Commission sought the Respondent’s position as to the application. The Commission’s email advised that if no response was received the application would be considered on the basis of the material presently before the Commission and that Order as sought may be issued. No response was received from the Respondent.

[5] The AMWU submits that the Fair Work Commission (the FWC) should exercise discretion under s.459(3) of the Act to extend the 30 day period, on the following grounds as set out in the Application:

• The AMWU is a bargaining representative for the proposed agreement and has continued to bargain with the Respondent;



• The AMWU has endorsed the most recent proposal offered by the Respondent to employees;



• The application is made to reserve the rights of AMWU employees covered by the protected action ballot in the event that the most recent offer is not approved by employees; and



• The period has not previously been extended.

Legislation

[6] Section 459(1) 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.”

[7] Section 459(3) provides that the FWC may extend the 30 day period as 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

[8] Section 459(1) establishes a 30 day period where the right to take industrial action can be described on the basis that employees are required to “use it or lose it”. Section 459(3) gives the FWC a discretionary power to extend the 30 day period. That power may be exercised in circumstances where the application for an extension is made either before or after the expiration of the original 30 day period. 2

[9] 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

[10] 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.

[11] The term “extension” implicitly means that the reference point for the extension is the date upon which the first 30 day period expired, and the time for the extension runs from no later than that date, so that if a second 30 day extension is granted it includes the last day of the first 30 day period, and is a 29 day extension from that date. 9

Conclusions

[12] 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. Accordingly, the application for an extension is granted. In the absence of any evidence or submissions to the contrary, I have also decided that the extension will operate for a period of 29 days from 11 August 2015, the date upon which the first 30 day period will expire.

[13] An Order reflecting this decision will issue and the extension period will operate to 9 September 2015.

DEPUTY PRESIDENT

 1   PR568409.

 2   National Union of Workers v Symbion Pharmacy Services Pty Ltd [2009] FWA 1284 per O’Callaghan SDP at [11]; AMACSU and Others v Flinders Operating Services Pty Ltd T/As Alinta Energy[2011] FWA 4617 per Bartel DP at [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 op. cit.

 8   MUA v DP World Adelaide Pty Ltd op. cit.

 9   AMACSU and Others v Flinders Operating Services Pty Ltd T/as Alinta Energy op. cit.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR570678>