“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v DMH Plant Services Pty Ltd

[2023] FWC 100

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v

DMH Plant Services Pty Ltd

(B2023/30)

VICE PRESIDENT CATANZARITI

SYDNEY, 16 JANUARY 2023

Application to extend the 30 day period in relation to B2022/1794

On 13 January 2023, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s. 459(3) of the Fair Work Act 2009 (Cth) (the Act) to extend the 30 day period for protected action authorised by a protected action ballot order, PR748644 made on 6 December 2022. The Order applies to certain employees of DMH Plant Services Pty Ltd (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 21 December 2022. Pursuant to s.459(1)(d)(i) of the Act, the 30 day period for protected action commenced on the date of the declaration of the results of the ballot and therefore expires at midnight on 19‎ ‎January‎ ‎2023.

On 13 January 2023, the Respondent advised the Commission via email that it does not oppose the AMWU’s application to extend the 30 day period for protected industrial action. Accordingly, I have determined the matter on the basis of the documentation filed.

In addressing s.459(3) of the Act, this application is made by the AMWU who is the Applicant for which the protected action ballot order was issued. Furthermore, the period specified in s.459(1)(d)(i) has not been previously extended.

On that basis and on the material before me, I am satisfied that each of the relevant requirements of s.459 of the Act have been met and that a 30 day extension is appropriate. As the 30 day period expires at midnight on 19‎ ‎January‎ ‎2023, the extension period will operate from 19‎ ‎January‎ ‎2023.

An order has been separately issued in PR749658.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU), acting on behalf of its members, applied to the Fair Work Commission (FWC) under section 459(3) of the Fair Work Act 2009 for an extension of the 30-day period for protected action authorised by a protected action ballot order issued on 6 December 2022. The ballot order, PR748644, pertained to certain employees of DMH Plant Services Pty Ltd, and the results were declared on 21 December 2022, with a majority endorsing the proposed forms of industrial action. The application was made on 13 January 2023, and the FWC heard the matter on the basis of the documentation filed. The employer, DMH Plant Services, did not oppose the application.

The legal issue before the FWC was whether the AMWU's application to extend the 30-day period for protected industrial action complied with the requirements of section 459 of the Fair Work Act 2009. The relevant provisions stipulated that the application must be made by the union, which is the case here, and that the specified period had not been extended previously. The FWC needed to determine whether the application met the statutory criteria and whether an extension was appropriate.

The FWC found that the AMWU's application met the statutory requirements, and the 30-day period had not been previously extended. Consequently, the FWC determined that a 30-day extension was appropriate. The extension period was set to commence from the expiration of the initial 30-day period, which was at midnight on 19 January 2023. An order was issued to effect the extension.

The FWC's decision to grant the extension was based on the evidence and documentation provided. The Commission found that all requirements of section 459 of the Act were satisfied, and the extension was necessary to allow for the continuation of the protected action as authorised by the ballot order. The employer's lack of opposition to the application also supported the FWC's decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established