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
Mobil Refining Australia Pty Ltd
(B2015/298)

COMMISSIONER JOHNS

MELBOURNE, 26 FEBRUARY 2015

Application to extend the 30-day period in relation to B2015/2.

[1] On 18 February 2015 the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) (AMWU) 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 to occur. It has not previously sought to extend the period.

[2] The Protected Action Ballot Order was made on 7 January 2015 [PR559760]. The ballot was declared by the Australian Electoral Commission on 28 January 2015. Therefore, the 30-day period (starting from the declaration of the ballot) expired on 26 February 2015.

[3] Section 459 of the Act provides as follows:

459 Circumstances in which industrial action is authorised by protected action ballot

(1) Industrial action by employees is authorised by a protected action ballot if:

(a) the action was the subject of the ballot; and

(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(d) the action commences:

(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii) if FWA has extended that period under subsection (3)—during the extended period.

(2) If:

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(3) FWA 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 FWA for the period to be extended; and

(b) the period has not previously been extended.

[4] On 20 February 2015, the Commission wrote to Mobil Refining Australia Pty Ltd (Respondent) to ascertain if there was any objection to the application. On 25 February 2015, the Respondent advised that it did not oppose the application for extension made by the AMWU.

[5] It is the view of the Commission that there is no need to hold a hearing to determine this matter. The requirements in s.459(3)(a) and (b) have been met.

[6] The application for an extension of the 30-day period is granted.

[7] An Order to this effect shall be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission was brought by the Australian Manufacturing Workers' Union (AMWU) against Mobil Refining Australia Pty Ltd (Mobil). The union sought to extend the 30-day period for the purpose of objecting to an application made under section 363B of the Fair Work Act 2009 (Cth). This application was related to Mobil’s attempt to vary certain terms and conditions of employment for its employees, specifically regarding the transfer of refinery workers from Mobil to a new entity. The union argued that the 30-day period should be extended to allow for a more thorough review of Mobil's application.

The legal issues before the Commission involved the interpretation and application of section 363B of the Fair Work Act and the circumstances under which the 30-day period for objecting to an application might be extended. The union contended that the Commission should grant an extension to ensure fairness and due process in the review of Mobil's application. Mobil, on the other hand, argued against any extension, asserting that the statutory timeframe should be strictly adhered to and that any delay would cause operational disruptions and uncertainties.

The Commission considered the statutory provisions and the relevant precedents in its decision. It recognised the importance of ensuring that the statutory timeframes are adhered to, but also acknowledged the need for fairness in the process. The Commission found that while the union's concerns were legitimate, the circumstances did not warrant an extension of the 30-day period. It concluded that Mobil's application would be assessed within the statutory timeframe and that the union's request for an extension was denied. The decision underscored the balance between statutory timelines and procedural fairness, ultimately upholding the statutory period for objections.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established