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

[2022] FWC 1422

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

Ventia Australia Pty Ltd and Downer Utilities Pty Ltd

(B2022/520)

VICE PRESIDENT CATANZARITI

SYDNEY, 6 JUNE 2022

Application to extend the 30 day period in relation to B2022/216

On 1 June 2022, 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, PR739679 made on 25 March 2022. The Order applies to certain employees of Ventia Australia Pty Ltd and Downer Utilities 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 5 May 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 expired at midnight on 3 June 2022.

On 3 June 2022, the Respondent advised the Commission via email that it does not oppose 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 3 June 2022, the extension period will operate from 3 June 2022.

An order has been separately issued in PR742359.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU), acting as the applicant, sought an extension of the 30-day period for protected industrial action authorised by a protected action ballot order made on 25 March 2022, under section 459(3) of the Fair Work Act 2009 (Cth). The order, PR739679, applied to certain employees of Ventia Australia Pty Ltd and Downer Utilities Pty Ltd. The union applied to the Fair Work Commission (the Commission) for an extension on 1 June 2022, and the results of the ballot, indicating majority support for the proposed forms of industrial action, were declared on 5 May 2022. As a consequence, the 30-day period for protected action, as per section 459(1)(d)(i) of the Act, began on 5 May 2022 and expired at midnight on 3 June 2022. The respondents, Ventia Australia Pty Ltd and Downer Utilities Pty Ltd, did not oppose the application for an extension.

The primary legal issue before the Commission was whether the requirements of section 459 of the Act were met to justify an extension of the 30-day period for protected industrial action. The Commission had to consider if the application met all relevant statutory criteria and if the 30-day period had not been previously extended. The AMWU, as the applicant, had to demonstrate that the application was made within the stipulated timeframe and that extending the period was appropriate under the circumstances.

In deciding the application, the Vice President Catanzariti examined the documentation provided and noted that the respondents had not opposed the application. The Vice President concluded that the AMWU had satisfied all the necessary requirements under section 459 of the Act for granting an extension. Given that the 30-day period expired at midnight on 3 June 2022, the extension would commence from that date. Consequently, the Commission determined that a 30-day extension was appropriate, and an order was issued in PR742359.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established