"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v BCS Infrastructure Support Pty Limited

[2023] FWC 2478

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)

BCS Infrastructure Support Pty Limited

(B2023/1020)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 26 SEPTEMBER 2023

Application to extend the 30 day period in relation to B2023/721

This matter concerns the declaration of the result of a protected action ballot (PR764349) held in matter B2023/721 and declared on 30 August 2023.

The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU or Applicant) 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.

BCS Infrastructure Support Pty Limited (BCS Infrastructure Support) 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 BCS Infrastructure Support be extended by a further 30 days.

This order will operate on and from 26 September 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application from the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) to extend the 30-day period for industrial action authorised by a protected action ballot, originally declared on 30 August 2023 in matter B2023/721. The AMWU sought to extend this period under section 459(3) of the Fair Work Act 2009, which permits such an extension if certain conditions are satisfied. BCS Infrastructure Support Pty Limited did not object to the AMWU's application. The Deputy President Hampton was tasked with determining whether the statutory requirements for extending the period were fulfilled.

The central legal issue for the Deputy President to resolve was whether the AMWU's application met the statutory prerequisites for an extension of the 30-day period under section 459(3) of the Act. Specifically, the court needed to verify that the AMWU had applied for an extension within the specified timeframe and that the 30-day period had not been previously extended. The Deputy President needed to ensure that the AMWU's application complied with these conditions to determine if the extension should be granted.

In examining the application, the Deputy President concluded that the AMWU had indeed satisfied the statutory conditions for extending the 30-day period. The AMWU had applied for the extension within the permissible timeframe and had not previously extended the period, thus meeting both criteria outlined in section 459(3) of the Act. Given that BCS Infrastructure Support Pty Limited did not oppose the application, the Deputy President found that the AMWU's application should be granted. Consequently, the 30-day period for the commencement of protected industrial action for eligible AMWU members employed by BCS Infrastructure Support was extended by a further 30 days.

The final order, issued pursuant to section 459(3) of the Fair Work Act 2009, extended the 30-day period for the commencement of protected industrial action for eligible AMWU members employed by BCS Infrastructure Support by a further 30 days. This extension took effect from 26 September 2023, providing the AMWU with additional time to organise industrial action, should it choose to do so.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established