“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union v Kinetic Fleet Services Pty Ltd

[2023] FWC 2856

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
v

Kinetic Fleet Services Pty Ltd

(B2023/1189)

DEPUTY PRESIDENT HAMPTON

SYDNEY, 31 OCTOBER 2023

Application to extend the 30-day period in relation to B2023/975

This matter concerns the declaration of the result of a protected action ballot (PR766157) held in matter B2023/975 and declared on 3 October 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.

Kinetic Fleet Services Pty Ltd (Kinetic Fleet or Respondent) has not advised the Commission of any objection 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 Kinetic Fleet be extended by a further 30 days.

This order will operate on and from 31 October 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) to extend the 30-day period in which industrial action is authorised by a protected action ballot. The application sought to extend the authorisation period for industrial action against Kinetic Fleet Services Pty Ltd (Kinetic Fleet), as allowed by section 459(3) of the Fair Work Act 2009. The protected action ballot, declared on 3 October 2023, authorised industrial action for 30 days starting from that date. The AMWU applied to extend this period by a further 30 days.

The legal issues the court had to decide included whether the application met the requirements specified in section 459(3) of the Act, and whether the 30-day period had already been extended. Specifically, the court had to confirm that the AMWU had applied for the extension, and that the authorisation period had not previously been extended. Additionally, the court needed to ensure that there was no objection from Kinetic Fleet to the extension, which would potentially influence the decision.

The Deputy President Hampton found that the AMWU had met all the requirements under section 459(3) of the Act for extending the authorisation period. The application was made within the stipulated timeframe, and there was no prior extension of the period. Furthermore, Kinetic Fleet did not object to the extension. Based on these findings, the Deputy President concluded that the application should be granted. Therefore, the court ordered that the 30-day period for the commencement of protected industrial action for eligible AMWU members employed by Kinetic Fleet be extended by a further 30 days, effective from 31 October 2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established