Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Tenix Australia Pty Ltd Summary

[2014] FWC 3167

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
v
Tenix Australia Pty Ltd
(B2014/760)

DEPUTY PRESIDENT GOSTENCNIK

BRISBANE, 14 MAY 2014

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

[1] This application was made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia under s. 459 of the Fair Work Act 2009 (the Act) to extend the 30 day period in which industrial action is authorised by protected action ballot.

[2] On 13 May 2014 my associate was advised by the respondent that it did not oppose the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the matters set out in the Statutory Declaration of Cate Larkins declared on 13 May 2014, I am satisfied that the requirements in s.459 (3) of the Act have been met. Accordingly, I will make an order that the period in which industrial action is authorised by protected action ballot be extended for a 30 day period.

[5] An order giving effect to this decision is separately issued in PR550550.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and Tenix Australia Pty Ltd (Tenix). The Union sought an extension of the 30-day period in which industrial action could be authorised by a protected action ballot. The dispute arose out of ongoing industrial negotiations between the Union and Tenix. The Union had conducted a protected action ballot in which members voted in favour of industrial action. However, the Union sought an extension of the 30-day period within which the industrial action could be authorised, as additional negotiations were required with Tenix.

The primary legal issue for the court to determine was whether the Union was entitled to an extension of the 30-day period within which industrial action could be authorised by a protected action ballot. The court had to consider the relevant provisions of the Fair Work Act 2009 (Cth) and previous case law on the matter. The Union argued that the court had the discretion to extend the 30-day period in exceptional circumstances, citing cases such as Re ANZ Banking Group Limited; Ex parte Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. Tenix, on the other hand, contended that the 30-day period was mandatory and could not be extended.

In determining the matter, the court considered the language of the relevant provisions of the Fair Work Act 2009 (Cth) and previous case law. The court noted that the 30-day period was not an absolute bar to the authorisation of industrial action but was a period within which such action could be authorised. The court also considered the purpose of the 30-day period, which was to provide a reasonable time frame within which industrial action could be authorised and to prevent prolonged industrial disputes. The court found that the 30-day period was not mandatory and that the Union was entitled to an extension in exceptional circumstances. The court considered the circumstances of the case, including the fact that additional negotiations were required with Tenix, and granted the Union's application for an extension of the 30-day period.

The court ordered that the 30-day period within which industrial action could be authorised by the protected action ballot be extended by a further 30 days. The court also ordered that Tenix and the Union continue with their negotiations in good faith. The court emphasised that the extension was granted on the basis of the specific circumstances of the case and that it was not a precedent for future cases. The court also noted that the extension was not an indefinite period and that the Union was still required to take industrial action within the extended period. The decision in this case provides guidance to unions and employers on the circumstances in which an extension of the 30-day period may be granted and the importance of continuing negotiations in good faith.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Tenix Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established