"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Australasian Food Group Pty Ltd T/A Peters Ice Cream

[2023] FWC 1934

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)

Australasian Food Group Pty Ltd T/A Peters Ice Cream

(B2023/775)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 3 AUGUST 2023

Application to extend the 30 day period in relation to B2023/499

his matter concerns the declaration of the result of a protected action ballot (PR762589) held in matter B2023/499 and declared on 3 July 2023.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) has made an application pursuant to s.459(3) of the Fair Work Act 2009 (Act) to extend the 30 day period in which industrial action is authorised by the relevant protected action ballot.

Section 459(3) of the Act provides as follows:

“(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.”

The application made by the AMWU contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

Australasian Food Group Pty Ltd T/A Peters Ice Cream has advised the Commission it has no objection to this application.

I am satisfied that the relevant requirements of the Act have been met and that the application should be granted.

Accordingly, pursuant to section 459(3) of the Act, I order that the 30 day period for the commencement of protected industrial action for eligible AMWU members employed by Australasian Food Group Pty Ltd T/A Peters Ice Cream be extended by a further 30 days.

This order will operate on and from 3 August 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers’ Union (AMWU), applied to the Fair Work Commission for an extension of the 30-day period in which industrial action could be authorised by a protected action ballot. The application was made in relation to a ballot held and declared on 3 July 2023 in matter B2023/499 against Australasian Food Group Pty Ltd trading as Peters Ice Cream. The applicant argued that the 30-day period should be extended by a further 30 days in accordance with section 459(3) of the Fair Work Act 2009. The respondent, Australasian Food Group Pty Ltd, had no objection to the application.

The central legal issue before the Deputy President was whether the AMWU’s application satisfied the requirements of section 459(3) of the Fair Work Act 2009. The Act allows for the extension of the 30-day period for the commencement of protected industrial action if certain criteria are met. The Deputy President needed to determine if the applicant had applied for the extension and if the period had not already been extended. Additionally, the Deputy President had to consider the application's merits and whether it was in the interests of achieving a just outcome.

The Deputy President concluded that the AMWU's application fulfilled the statutory requirements. The period had not been previously extended, and the application was made by the relevant party. Additionally, the respondent had no objections to the extension. The Deputy President found that the application should be granted to allow a further 30 days for the commencement of industrial action. Consequently, the Deputy President ordered that the 30-day period be extended by an additional 30 days, effective from 3 August 2023.

This decision provides clarity on the process for extending the 30-day period for protected industrial action and reinforces the importance of meeting statutory requirements when making such applications. The order ensures that the AMWU can proceed with industrial action if necessary, while also considering the interests of both the union and the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established