“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Harvey Fresh (1994) Ltd

[2022] FWC 2563

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

Harvey Fresh (1994) Ltd

(B2022/1406)

VICE PRESIDENT CATANZARITI

SYDNEY, 23 SEPTEMBER 2022

Application to extend the 30 day period in relation to B2022/1163

On 16 September 2022, 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, PR744481 made on 3 August 2022. The Order applies to certain employees of Harvey Fresh (1994) 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 18 August 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 16 September 2022.

On 19 September 2022, the Respondent advised the Commission via email that it does not oppose the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (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 “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (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 16 September 2022, the extension period will operate from 16 September 2022.

An order has been separately issued in PR746154.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers’ Union (AMWU) applied to the Fair Work Commission (FWC) to extend the 30-day period for protected action authorised by a ballot order, PR744481, which was made on 3 August 2022. The order applied to certain employees of Harvey Fresh (1994) Ltd. The result of the ballot, in which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 18 August 2022. The 30-day period for protected action expired at midnight on 16 September 2022. The Respondent, Harvey Fresh, did not oppose the application. The AMWU applied for an extension under s. 459(3) of the Fair Work Act 2009. The FWC accepted that the application met the requirements of the Act and granted the extension. The 30-day period for protected action was extended from 16 September 2022.

The legal issue before the FWC was whether the AMWU's application met the requirements of s. 459 of the Fair Work Act 2009 and whether a 30-day extension was appropriate. The FWC considered that the application met the requirements of the Act and that a 30-day extension was appropriate. The FWC noted that the 30-day period for protected action expired at midnight on 16 September 2022 and that the extension period would operate from 16 September 2022.

The FWC found that the AMWU's application met the requirements of s. 459 of the Fair Work Act 2009. The FWC noted that the period specified in s.459(1)(d)(i) had not been previously extended. The FWC also noted that the Respondent did not oppose the application. The FWC considered that the AMWU had satisfied the relevant requirements of s.459 of the Act and that a 30-day extension was appropriate.

The FWC issued an order extending the 30-day period for protected action from 16 September 2022. An order has been separately issued in PR746154.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established