Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
[2017] FWC 3697
•24 JULY 2017
| [2017] FWC 3697 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.459—Protected action
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2017/570)
| Deputy President Asbury | BRISBANE, 24 JULY 2017 |
Application to extend the 30-day period in relation to B2017/393.
Background
On application made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU), on 15 May 2017, Senior Deputy President Hamberger ordered that a protected action ballot be held in relation to employees of Kogan Creek Power Pty Ltd T/A CS Energy Pty Ltd (the Respondent) who are eligible members of the CEPU and would be covered by a proposed enterprise agreement.[1] The ballot was ordered to be conducted by the Australian Electoral Commission (the AEC).
On 12 June 2017, the AEC issued a formal declaration of results in relation to the ballot. The ballot declared that the action was approved by employees participating in the ballot. By virtue of s.459(1)(d)(i) of the Act, industrial action was authorised by that ballot if it commenced during the 30-day period starting on that date.
On 7 July 2017, the CEPU made an application under s.459(3) of the Fair Work Act 2009 (the Act) for an extension to the 30 day period in which industrial action is authorised by protected action ballot. The application sought an order in relation to employees of the Respondent whose terms and conditions of employment will be covered by a new proposed enterprise agreement.
The Commission sought the Respondent’s position as to the application and requested a response by no later than 4pm on 24 July 2017. The Respondent was advised that if no response was received by that time, I would consider the application on the material before me. The Respondent indicated on 21 July 2017 that it does not object to the CEPU’s application being granted.
The CEPU submits that the application for an extension of the period has been made during 30-day period starting on the date of the declaration of results by the AEC and that the protected action period has not previously been extended.
Legislation
Section 459(1) of the Act deals with circumstances in which industrial actions is authorised by a protected action ballot and provides as follows:
“459 Circumstances in which industrial action is authorised by protected action ballot
(1) Industrial action by employees is authorised by a protected action ballot if:
(a) the action was the subject of the ballot; and
(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and
(c) more than 50% of the valid votes were votes approving the action; and
(d) the action commences:
(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or
(ii) if the FWC has extended that period under subsection (3)—during the extended period.
Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.”
Section 459(3) of the Act provides that the FWC may extend the 30 day period as in the following terms:
“(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.”
Consideration
Section 459(1) of the Act establishes a 30 day period where the right to take industrial action can be described on the basis that employees are required to “use it or lose it”. Section 459(3) of the Act gives the FWC a discretionary power to extend the 30 day period. That power may be exercised in circumstances where the application for an extension is made either before or after the expiration of the original 30 day period.[2]
It has been held that the discretion should be exercised in situations where it can be demonstrated that bargaining is proceeding and an extension is consistent with the objects of the Act as specified in s.436.[3] The discretion is wide and is unconditioned by a statutory direction.[4] Parliament has provided for a one off extension without the need for a further ballot, and cogent reasons are required to refuse an application for an extension, such as a change in disposition or composition of employees.[5]
Circumstances in which an extension has been granted are that parties are bargaining in good faith; there is not a lengthy delay between the expiry of the original 30 day period and the application for an extension being made;[6] parties have participated in conciliation during the original 30 day period;[7] or have refrained from taking industrial action and bargained constructively.[8] It is also the case that if an overly restrictive view is taken of the circumstances in which the discretion will be exercised, the result will be that industrial action may be taken in a number of forms during the initial 30 day period, simply to preserve the right to take it after that period has expired. This outcome is not consistent with the objects in s.436 of the Act of establishing a fair and simple process.
In my view the term “extension” implicitly means that the reference point for the extension is the date upon which the first 30 day period expired, and the time for the extension runs from no later than that date, so that if a second 30 day extension is granted it includes the last day of the first 30 day period, and is a 29 day extension from that date.[9]
Conclusions
There is no evidence to suggest that the CEPU and its members are not bargaining in good faith or that the CEPU and its members are not genuinely trying to reach agreement with the Respondent. At the request of the Commission, the CEPU has agreed to a moratorium on protected industrial action to participate in negotiations facilitated by the Commission.
The Respondent has indicated that it does not object to the CEPU’s application being granted. Accordingly, the application for an extension is granted. I have also decided that the extension will operate for a period of 29 days from 11 July 2017, the date upon which the first 30 day period expired.
An Order reflecting this decision will issue and the extension period will operate to 8 August 2017.
DEPUTY PRESIDENT
[1] PR592924.
[2] National Union of Workers v Symbion Pharmacy Services Pty Ltd [2009] FWA 1284 per O’Callaghan SDP at [11]; AMACSU and Others v Flinders Operating Services Pty Ltd T/As Alinta Energy[2011] FWA 4617 per Bartel DP at [10].
[3] National Union of Workers v Symbion Pharmacy Services Pty Ltd [2009] FWA 1284 per O’Callaghan SDP at [11]
[4] Re: Transport Workers’ Union of Australia [2011] FWA 1097 per Lewin C.
[5] MUA v DP World Adelaide Pty Ltd [2010] FWA 7638 per Hampton C.
[6] National Union of Workers v Symbion Pharmacy Services Pty Ltd op. cit.
[7] AMACSU and Others v Flinders Operating Services Pty Ltd T/As Alinta Energy op. cit.
[8] MUA v DP World Adelaide Pty Ltd op. cit.
[9] AMACSU and Others v Flinders Operating Services Pty Ltd T/as Alinta Energy op. cit.
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