“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union v Paper Australia Pty Ltd T/A Opal Australian Paper

[2023] FWC 3387

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

Paper Australia Pty Ltd T/A Opal Australian Paper

(B2023/1376)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 20 DECEMBER 2023

Application to extend the 30 day period in relation to B2023/1249.

This matter concerns the declaration of the result of a protected action ballot (PR768310) held in matter B2023/1249 and declared on 29 November 2023.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU or Applicant) 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.

Paper Australia Pty Ltd T/A Opal Australian Paper (Opal) 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 Opal be extended by a further 30 days.

This order will operate on and from 20 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involves 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 for commencing industrial action authorized by a protected action ballot. The application was made against Paper Australia Pty Ltd trading as Opal Australian Paper. The Commission was tasked with determining whether the AMWU's application to extend the authorized industrial action period should be granted, considering the requirements outlined in section 459(3) of the Fair Work Act 2009.

The legal issue at the core of this decision revolves around the interpretation and application of section 459(3) of the Fair Work Act 2009, which permits the Fair Work Commission to extend the 30-day period for industrial action if certain conditions are met. The AMWU argued that it had fulfilled the prerequisites for an extension, and that the 30-day period should be extended by an additional 30 days. Paper Australia Pty Ltd did not object to the application, leaving the Commission to determine the application's merits based on the AMWU's submissions and the relevant statutory provisions.

The Deputy President concluded that the AMWU had met the statutory requirements for an extension. Specifically, the application for an extension was made by the AMWU, and the initial 30-day period had not been previously extended. Given these findings, the Deputy President granted the AMWU's application, extending the period for the commencement of industrial action by a further 30 days. This extension was to take effect from 20 December 2023.

The Fair Work Commission's order extended the 30-day period for the commencement of industrial action by eligible AMWU members employed by Opal Australian Paper by an additional 30 days, from the date of the decision, 20 December 2023. This decision was made in accordance with section 459(3) of the Fair Work Act 2009, recognizing the AMWU's right to apply for an extension and the absence of any objections from Opal Australian Paper.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established