Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Amcor Packaging (Australia) Pty Ltd T/A Amcor Cartons Australasia

[2010] FWA 120

[2010] FWA 120

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.459 – Application to extend the 30 day period in which industrial action must commence to be authorised by a protected action ballot.

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Amcor Packaging (Australia) Pty Ltd T/A Amcor Cartons Australasia
(B2010/2512)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 13 JANUARY 2010

Application to extend the 30 day period in which industrial action must commence to be authorised by a protected action ballot.

[1] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) has applied for a 30 day extension to the period during which industrial action by employees employed by Amcor Cartons Australasia (Amcor) must commence if is to be authorised by the protected action ballot ordered by Senior Deputy President O’Callaghan on 1 December 2009 [PR991380].

[2] Section 459 of the Fair Work Act 2009 (the Act) 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 FWA 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.

(2) If:

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(3) FWA 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 FWA for the period to be extended; and

(b) the period has not previously been extended.

[3] The results of the protected action ballot ordered on 1 December 2009 were declared on 16 December 2009. The ballot authorised seven types of industrial action. These were:

• One or more stop work meetings for up to four hours duration;



• One or more four hour stoppages;



• One or more 24 hour stoppages;



• One or more 48 hour stoppages;



• One or more 7 day stoppages;



• Bans on the working of overtime; and



• Bans on out of hours standby availability and out of hours call in work.

[4] On 18 December 2009 the AMWU issued a notice of intended industrial action in relation to bans on the working of overtime, and bans on out of hours availability and out of hours call in work. This industrial action was subsequently commenced on 24 December 2009. No other form of industrial action has as yet been taken.

[5] The 30 day period referred to s.459 (1)(d)(i) expires on 15 January 2010.

[6] The AMWU is seeking an extension of this period to give its members at Amcor the ability to take the other forms of industrial action approved in the protected action ballot. It submitted that due to the Christmas/New year period a large proportion of employees had been on leave during the 30 day period after the ballot results were declared, and it had been impractical to commence these forms of industrial action. While it was negotiating with the employer in good faith, an extension of time would allow the employees to exercise their right to engage in protected action ‘if desired to further the negotiation process.’

Consideration

[7] Gyles J in United Collieries 1, when considering the equivalent provision to s.459 in the Workplace Relations Act (1996), found that where a protected action ballot had authorised a range of different kinds of industrial action, each of those kinds of action had to have commenced within the initial 30 day period to retain their ‘protected’ nature after that period – unless that period had been extended by the Australian Industrial Relations Commission. Accordingly, if the application sought in this case is not granted, the AMWU members at Amcor will be unable to take any of the kinds of industrial action authorised by the protected action ballot, apart from bans on overtime and out of hours standby and call in work.

[8] The factual preconditions found at s.459(3)(a) and (b) are met: the AMWU was the applicant for the relevant protected action ballot order, and the relevant period has not previously been extended. The issue then is whether FWA should exercise its discretion to extend the period during which protected action can commence. The applicant has to make out a case for such an extension.

[9] I am satisfied the AMWU has made out such a case. The declaration of the protected action ballot occurred just before the Christmas/New Year period, during which many of the employees were on leave. It would have been impractical to take much in the way of industrial action during this period. In all the circumstances, failure to grant the extension as sought would mean preventing the employees in question from exercising their legitimate right to take protected industrial action.

[10] An order extending the period during which protected action may commence will be issued simultaneously with this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

S. Nachiappan for the AMWU

S Bakewell for Amcor

Hearing details:

2010

12 January

Adelaide/Sydney (by video link)

 1   United Collieries Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] FCA 904

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