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

[2015] FWC 5071

[2015] FWC 5071

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)
(B2015/745)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2015/748)

The Australian Workers' Union
(B2015/759)

DEPUTY PRESIDENT ASBURY BRISBANE, 24 JULY 2015

Applications to extend the 30-day period in relation to matters B2015/547, B2014/629 and B2015/86 Application to extend the 30-day period in relation to B2015/546.

Background

[1] On applications of The Australian Workers’ Union (the AWU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) on 2 June 2015, in respect of the AWU, and 27 May 2015, in respect of the AMWU and CEPU, the Commission as presently constituted ordered that a protected action ballot be held in relation to employees of Mackay Sugar Limited (Mackay Sugar) who are eligible members of the AWU, AMWU and CEPU, who are covered by the Mackay Sugar Limited, Mossman Sugar Mill Enterprise Bargaining Agreement, No 10 and would be covered by the proposed agreement. 1 The ballots were each ordered to be conducted by the Australian Electoral Commission (the AEC).

[2] On 23 June 2015, in respect of the AMWU and CEPU ballots, and 30 June 2015 in respect of the AWU ballot, the AEC issued formal declarations of results in relation to the ballots. The ballots each 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 these ballots if it commenced during the 30-day period starting on these dates.

[1] On 20, 21 and 23 July 2015, the AMWU, CEPU and AWU respectively, each 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 their respective protected action ballots. The applications sought an order in relation to employees of Mackay Sugar whose terms and conditions of employment will be covered by a new proposed agreement.

[2] The Commission sought Mackay Sugar’s position as to the application and on 21 July 2015 an email was received from Mackay Sugar’s representative. In response to the applications, Mackay Sugar objected to the orders for extension being granted on the basis that the Commission should not extend the 30-day period in the exercise of the discretion. Mackay Sugar also made an application that if the Commission were minded to exercise the discretion to grant an extension it should also make an order that the notice requirements for any industrial action be increased from 3 days to 5 days. The AMWU, CEPU and AWU objected to any such additional order being made.

[3] The AMWU, CEPU and AWU jointly submit that the Commission should exercise the discretion under s.459(3) of the Act to extend the 30 day period, on the following grounds:

• The parties have continued discussions since a related bargaining dispute was before the Commission but have to date failed to reach an agreement;



• No form of protected industrial action has been taken by any of the employees; and



• No previous extension has been granted.

[4] Directions were issued and the matter was listed for Hearing and Conference on 24 July 2015. The present applications were listed concurrently with a related bargaining dispute application also before the Commission for Report-Back. Prior to the commencement of the Hearing, further offers were exchanged between the parties. The matters were eventually resolved on the basis that: the AMWU, AWU and CEPU would recommend that their members support the proposed Agreement on the basis of the new offer, and Mackay Sugar Limited would withdraw its objection to the applications to extend the 30 day period and its application to increase the notice requirements for the taking of industrial action. Mackay Sugar also requested that the Commission reiterate its previous Recommendation that the offer be accepted by employees and its expectation that no notices of protected industrial action would be given by the Unions while that offer was being considered.

Legislation

[5] 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.”

[6] 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

[7] 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

[8] 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

[9] 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.

[10] In my view 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

[11] In the present case, it is uncontested that AWU, AMWU and CEPU members have not taken industrial action authorised by the ballot.

[12] Initially, Mackay Sugar sought to object to the applications being granted in the exercise of the discretion. The basis for this was said to be the circumstances of the employer and the conduct of the Union parties to date. The matter did not proceed to formal Hearing and this objection was withdrawn.

[13] I have issued a Statement again recommending that the offer be accepted and setting out my expectation that no industrial action will be taken while the offer is under consideration.

[14] On the basis of the material before me the pre-requisites of an order extending the 30 day period are met. With the objections to the exercise of the discretion not pressed, there is no material before the Commission that would persuade me that the extension should not be granted. 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 22 July 2015, in respect of the AMWU and CEPU ballots, and 29 July 2015 in respect of the AWU ballot, the dates upon which the first 30 day periods expired or will expire.

[15] An Order in each matter reflecting this decision will issue.

DEPUTY PRESIDENT

 1   PR567783 (CEPU), PR567777 (AMWU) and PR567967 (AWU).

 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.

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