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

[2020] FWC 5828

[2020] FWC 5828

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
Mesh & Bar Pty Ltd
(B2020/665)

DEPUTY PRESIDENT DEAN SYDNEY, 30 OCTOBER 2020

Application to extend the 30-day period in relation to B2020/453.

[1] On 29 October 2020, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) made an application to the Fair Work Commission pursuant to s. 459(3) of the Fair Work Act 2009 to extend the 30 day period for protected action authorised by a protected action ballot order, PR722017 (the Order) made on 21 August 2020. The Order applies to certain employees of Mesh & Bar Pty Ltd (the Respondent).

[2] The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 2 October 2020. 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 31 October 2020.

[3] On 29 October 2020, the Respondent through the Australian Industry Group (AiG) opposed the application on the basis that employees who participated in the protected action ballot had been asked to vote on a proposed enterprise agreement and the vote was scheduled to take place the following day between 2:00 and 2:30 pm.

[4] In reply, the AMWU advised its intention not to press the application should a majority of the employees vote to approve the proposed agreement. It was submitted that the criteria under s.459 of the Act are satisfied and it was open to the Commission to determine the application on the material before it.

[5] In subsequent email correspondence from the Commission, parties were requested to inform the outcome at the conclusion of the vote and were advised of my intention to issue the order sought in the event the proposed agreement was voted down.

[6] Consequently AiG advised the Commission that the vote had concluded with an outcome that a majority of employees did not vote to approve the proposed enterprise agreement.

[7] Section 459(3) of the Act allows the Commission to extend the 30 day period referred to in s.459(1)(d)(i) of the Act by up to 30 days if the applicant for the protected action ballot order applies to the Commission for the period to be extended and the period has not previously been extended.

[8] On the material before me, I am satisfied that the relevant requirements of s.459 of the Act are met and that a 30 day extension is appropriate. Accordingly, I grant the AMWU’s application to extend the 30 day period by a further 30 days.

[9] An order has been separately issued in PR724142.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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