"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v UGL Rail (North Queensland) Pty Ltd

[2023] FWC 967

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v

UGL Rail (North Queensland) Pty Ltd

(B2023/355)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 APRIL 2023

Application to extend the 30 day period in relation to B2023/206

On 18 April 2023, 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, PR760189 made on 9 March 2023. The Order applies to certain employees of UGL Rail (North Queensland) Pty 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 23 March 2023. 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 expired at midnight on 21 April 2023.

The Respondent neither consented nor objected to the 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 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 expired at midnight on 21‎ ‎April‎ ‎2023, the extension period will operate from 21‎ ‎April‎ ‎2023.

An order has been separately issued in PR761335.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) for an extension of the 30-day period for protected action, as authorised by a protected action ballot order. This application was made under section 459(3) of the Fair Work Act 2009 and was directed against UGL Rail (North Queensland) Pty Ltd. The ballot, which was held under order PR760189 on 9 March 2023, resulted in a majority of the relevant employees endorsing the proposed forms of protected industrial action. The 30-day period for initiating the action began on the date of the ballot results declaration on 23 March 2023 and expired at midnight on 21 April 2023. UGL Rail neither consented to nor objected to the AMWU's application.

The legal issue before the Commission was whether the 30-day period could be extended under section 459(3) of the Fair Work Act. The AMWU argued that an extension was warranted given the circumstances presented. The Commission noted that the application was made by the AMWU, who were the Applicant in the original ballot order, and that the 30-day period had not been previously extended. The Commission determined that all relevant requirements of section 459 of the Act had been satisfied, and accordingly, an extension of the 30-day period was appropriate. The extension was set to commence from 21 April 2023, the date on which the original period expired.

In light of the findings, the Commission issued an order extending the 30-day period for protected action. The extension was documented in a separate order, PR761335, which provided the necessary legal framework for the AMWU to proceed with the authorised protected action beyond the initial 30-day limit. This decision underscores the Commission's role in balancing the rights of employees to engage in protected industrial action with the need for timely resolution of disputes in the workplace.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established