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

[2023] FWC 1767

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

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

UGL Rail Services Pty Limited

(B2023/724)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 20 JULY 2023

Application to extend the 30 day period in relation to B2023/547

This matter concerns the declaration of the result of a protected action ballot (PR762974) held in matter B2023/547 and declared on 27 June 2023.

The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) has 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 by the relevant protected action ballot.

Section 459(3) of the Act provides as follows:

“(3) The FWC 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 the FWC for the period to be extended; and

(b) the period has not previously been extended.”

The application made by the AMWU contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

UGL Rail Services Pty Limited has advised the Commission it does not object to this application.

I am satisfied that the relevant requirements of the Act have been met and that the application should be granted.

Accordingly, pursuant to section 459(3) of the Act, I order that the 30 day period for the commencement of protected industrial action for eligible AMWU members employed by UGL Rail Services Pty Limited be extended by a further 30 days.

This order will operate on and from 20 July 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) has applied to the Fair Work Commission to extend the 30-day period for industrial action authorised by a protected action ballot. This application was made in the context of industrial action against UGL Rail Services Pty Limited, following the declaration of the result of the ballot on 27 June 2023. The AMWU sought an extension under section 459(3) of the Fair Work Act 2009, which allows the Commission to extend the period by up to 30 days if certain conditions are met. UGL Rail Services Pty Limited did not object to the application.

The primary legal issue before the Commission was whether the AMWU's application met the statutory requirements for an extension under section 459(3) of the Fair Work Act 2009. Specifically, the Commission needed to determine if the application was made by an applicant for the protected action ballot order and if the 30-day period had not previously been extended. The AMWU argued that both conditions were satisfied, and the Commission found that UGL Rail Services Pty Limited's lack of objection further supported the application's merit.

In granting the application, the Deputy President of the Fair Work Commission, Hampton, concluded that the AMWU's application fulfilled the statutory prerequisites. The Deputy President also noted UGL Rail Services Pty Limited's non-objection to the extension. Consequently, the Commission ruled that the 30-day period for protected industrial action should be extended by an additional 30 days. This extension took effect from 20 July 2023, providing the AMWU with a total of 60 days from the date of the ballot declaration to commence industrial action if deemed necessary.

This decision underscores the Commission's authority to grant extensions under the Fair Work Act 2009 and highlights the importance of meeting statutory requirements for such extensions. The outcome allows the AMWU to proceed with its industrial action plan, potentially affecting UGL Rail Services Pty Limited's operations for an additional 30 days.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established