“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Queensland Alumina Limited
[2022] FWC 2525
•20 SEPTEMBER 2022
| [2022] FWC 2525 |
| 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
Queensland Alumina Limited
(B2022/1411)
| DEPUTY PRESIDENT DEAN | CANBERRA, 20 SEPTEMBER 2022 |
Application to extend the 30 day period in relation to B2022/1221.
On 19 September 2022, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) made an application to the 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, PR744813 (the Order) made on 15 August 2022. The Order applies to certain employees of Queensland Alumina Limited (the Respondent).
The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 22 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 20 September 2022.
The Respondent opposes the application and through its lawyers, Corrs Chambers Westgarth, provided written grounds of objection and sought that the application be determined by the Commission on the papers without holding a hearing.
The Respondent outlined the grounds of its objection as follows:
“No reasons or grounds are advanced by the AMWU in support of the application for an extension of time. The exercise of the Commission’s discretion in section 459(3) of the Act is to be: “… exercised judicially and all relevant considerations taken into account. This includes the scheme of the Act, the conduct and circumstances of the parties and the consequences of any extension that might be granted” (Maritime Union of Australia v DP World Adelaide Pty Ltd [2010] FWA 7638 at 29). No such circumstances or grounds are advanced by the AMWU. In the absence of such circumstances or grounds, the exercise of discretion ought be refused.
We are instructed that there have been further, constructive negotiations between the bargaining representatives about the terms of a replacement enterprise agreement to be put to a vote. In these circumstances, there is a least some prospect that the will of the majority of voters for protected industrial action (in whatever form that may take) has changed.
Although the statutory framework is designed to avoid ‘cost, delay and inconvenience’ in assessing the will of the majority through a fresh application for a new protected action ballot (Energy Australia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FCAFC 8, per North and Bromberg JJ at [16]), the framework is nonetheless structured on a ‘use it or lose it’ basis (Australian Manufacturing Workers’ Union v Mulgrave Central Mill Company Limited[2016] FWC 4976 at [8]), absent cogent reasons as to why the application ought be refused.
In summary, in circumstances where the applicant for an extension of time has not advanced any reasons or grounds in support of the application, there is some prospect that the will of voters has changed and the rights of those voters can adequately be protected by conducting a fresh ballot, the application for an extension of time ought be refused.”
In response, the AMWU through its lawyers, Maurice Blackburn Lawyers, included the following submissions:
“2.The Commission’s discretion, which is wide and unconditioned by a statutory direction, should be exercised where it can be demonstrated that bargaining is proceeding and an extension is consistent with the objects of the Act. That discretion is wide and unconditioned by a statutory direction. Cogent reasons are required to refuse an application for an extension, such as a change in disposition or composition of employees.
3.Pursuant to r. 8 and Sch. 1 of the Fair Work Commission Rules 2013 (Cth) the prescribed form for an extension is the F34A form. That prescribed form asks only that an applicant provide details of the protected action ballot order to which the application relates, the date of the declaration of the results of the ballot, confirm whether or not the application is made during the 30-day period starting on the date of the declaration of the results of the ballot and whether the protected action period has previously been extended.
4.Beyond these matters, neither the prescribed form, nor the Act requires an applicant to articulate further grounds on which an extension is sought.
5.The position of the AMWU is that, notwithstanding that progress has been made in negotiating an agreement, the capacity to engage in protected industrial action is necessary to ensure the best outcome for its members in the extant negotiations which remain unresolved. This is the purpose for which the extension is sought.
6.Here, there is no claim by the Respondent that the parties are not bargaining in good faith. To the contrary, the Respondent contends that constructive negotiations have occurred. This is a circumstance which supports the grant of an extension.
7.The application for an extension has been made during the 30-day period running from 15 August 2022 and the period has not previously been extended.
8.The application was accompanied by a copy of a declaration of the results for the protected action ballot, which demonstrated overwhelming support for the proposed action to be notified among those eligible to vote and who have voted.
9.The assertion that “there is a least some prospect that the will of the majority of voters for protected industrial action (in whatever form that may take) has changed” is speculative. The Respondent does not propose to lead any evidence that this circumstance has arisen (instead, it asks that the matter be determined on the papers). This does not provide a cogent reason to refuse an application for an extension.
10.These circumstances provide a sound basis for the Commission to exercise its discretion to grant the extension and to avoid the cost, delay and inconvenience involved in assessing the will of the majority through a fresh application for a new protected action ballot, due to the mere apprehension of the Respondent.” (Citations omitted)
Consideration
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 (a) the applicant for the protected action ballot order applies to the Commission for the period to be extended; and (b) the period has not previously been extended.
It is not in dispute that the two requisite conditions to invoke the Commission’s power to grant the extension are satisfied in the present application.
I am satisfied based on the submissions of the parties that bargaining is proceeding, and an extension is consistent with the objects of the Act. As correctly outlined on behalf of the AMWU, the Commission’s prescribed form requires particular information which does not extend to detailed grounds or reasons in support of the application. Further, there is nothing to suggest that the parties are not bargaining in good faith.
In these circumstances I am satisfied it is appropriate to grant the AMWU’s application to extend the 30 day period by a further 30 days.
An order has been separately issued in PR746054.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR746053>
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