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

[2020] FWC 1813

[2020] FWC 1813

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
SEM Fire and Rescue Pty Ltd
(B2020/224)

DEPUTY PRESIDENT MANSINI MELBOURNE, 6 APRIL 2020

Application to extend the 30-day period for the commencement of protected industrial action.

[1] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the AMWU) has applied for an order to extend the 30-day period within which protected industrial action must commence, pursuant to s.459(3) of the Fair Work Act 2009 (Cth) (the Act). On 3 April 2020, I issued an order with reasons to follow. Those reasons are as follows.

Relevant context

[2] The AMWU is a bargaining representative for a proposed enterprise agreement to cover certain employees of Sem Fire and Rescue Pty Ltd (the Employer).

[3] On 10 February 2020, Deputy President Gostencnik issued an order for a ballot of employees of the Employer who will be covered by the proposed enterprise agreement and are represented in bargaining by the AMWU (Employees). Pursuant to the order in PR716525, the ballot was conducted by the Australian Electoral Commission (AEC). The results of the ballot were declared on 4 March 2020.

[4] There were eight questions posed by the ballot, seeking authorisation of particular forms of proposed industrial action. The results of the ballot in respect of each of the forms of industrial action are set out in the AEC’s declaration: in summary, 13 of 16 employees on the roll participated in the vote and a majority (at least 10 employees in each case) voted to authorise each of the forms of industrial action.

[5] Not all of the forms of industrial action authorised by the ballot have been engaged in by the employees during the 30 day period. The AMWU’s application seeks an extension of that period.

The dispute before the Commission

[6] The AMWU contended that its members wish to preserve their ability to engage in protected industrial action authorised by the ballot and, if appropriate, to exercise their rights in that respect. Further, that it remains prepared to sit down with the Employer and continue the negotiations in the interests of genuinely trying to reach agreement on the terms of the proposed enterprise agreement.

[7] The Employer opposed the application for an extension of the 30 day period on three grounds. First, it has scheduled a ballot of the relevant employees to take place imminently (on 9 April 2020), at which time the employees will be requested to vote on the terms of the proposed enterprise agreement. Second, its business involves the production of ambulances and fire appliances which it supplies to ambulance and fire authorities in Victoria and New South Wales and therefore protected industrial action is contrary to the public interest. Third, protected industrial action is likely to cause significant economic harm to the business and its employees.

Statutory framework

[8] Section 459 of the Act relevantly provides that industrial action by employees is authorised by a protected action ballot if the action commences during the 30 day period starting on the day of the declaration of the results of the ballot or, if the period has been extended by the Commission, during the extended period.

[9] Section 459(3) provides the Commission with a discretion to extend the period within which protected industrial action must commence if the applicant for a protected action ballot order applies for the period to be extended, and that period has not previously been extended. There are two discretionary elements:

a) whether to extend the 30 day period; and
b) the period of the extension (confined to an extension of no greater than 30 days).

[10] The discretion under s.459(3) is to be exercised having regard to the evident statutory purpose of the provision, read in the context of Part 3-3 and the Act as a whole, and taking into account the circumstances of the relevant application. The object of the Division 8 of Part 3-3, in which s.459(3) appears, is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement. 1

Consideration

[11] The AMWU is a bargaining representative and was the applicant for the protected action ballot order. It has made a valid application for an extension of the 30 day period. The period has not previously been extended. The jurisdictional prerequisites for extending the 30 day period are satisfied in this case.

[12] I have determined that it is appropriate to exercise my discretion to extend the 30 day period in this case. Although no formal evidence of the negotiations was adduced, the parties’ description of the negotiations to date is consistent with the AMWU’s contention that it has been and is genuinely trying to reach an agreement. On the evidence that is before the Commission and having regard to the parties’ views and submissions, I have no reason to doubt that, should the AMWU apply for a fresh protected action ballot order, it would be granted. That the Employer proposes to request employees to approve the proposed enterprise agreement by voting for it, which may or may not result in an enterprise agreement being made, is irrelevant for present purposes. There is nothing before the Commission to indicate a change in the circumstances that would be relevant to the consideration of a further ballot application. Accordingly, to put the AMWU to the task (including cost, delay and inconvenience) of seeking a fresh protected action ballot order would be incompatible with the objects of Division 8, Part 3-3 of the Act.

[13] On the materials before the Commission, I can not identify any consideration that tells against the exercise of the discretion in this case. In so finding I observe that the Employer’s concerns about the public interest and economic harm are more appropriately dealt with in the context of another application, at the relevant time.

[14] In the event that the Commission was minded to exercise its discretion, the extension sought was for 30 days. The period of the extension was not opposed. In the circumstances I consider that it is appropriate to extend the period by 30 days.

[15] For the above reasons, pursuant to s.459(3) of the Act, I grant the Union’s application to extend the 30 day period in s.459(1)(d)(i) by a further 30 days.

[16] An order has issued separately in PR718077.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR718076>

 1   Section 436 of the Act.