Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v W.H.Heck & Sons Pty Ltd T/A Rocky Point Sugar Mill

[2018] FWC 4126

[2018] FWC 4126

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
W.H.Heck & Sons Pty Ltd T/A Rocky Point Sugar Mill
(B2018/569)

DEPUTY PRESIDENT ASBURY BRISBANE, 16 JULY 2018

Application to extend the 30-day period in relation to B2018/335.

[1] On application made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), on 14 May 2018, I ordered that a protected action ballot be held in relation to the employees of W.H. Heck & Sons Pty Ltd T/A Rocky Point Sugar Mill (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).

[2] On 8 June 2018, the AEC issued a formal declaration of the results of the ballot. By virtue of s.459(1)(d)(i) of the Fair Work Act 2009 (the Act), industrial action was authorised by the completed ballot provided that such action commenced within the 30-day period commencing 8 June 2018.

[3] At 2:09pm on 9 July 2018, the CEPU made an application under s.459(3) of the Act for an extension to the 30-day period in which the proposed industrial action was authorised under the protected action ballot. The application sought orders regarding employees of the Respondent whose terms and conditions of employment are to be covered by a proposed enterprise agreement which remains in the bargaining process.

[4] The CEPU submitted that its application had not been made during the 30-day period starting on the date of 8 June 2018, and that it has not previously applied for the protected action period concerned to be extended.

[5] At 3:00pm on 9 July 2018, the Commission corresponded with the Respondent by email seeking the Respondent’s position in relation to the application. The Respondent sent correspondence to the Commission by email and indicated that it objected to the application, and the matter was subsequently allocated to me.
[6] I issued directions requiring the Employer to file material outlining the grounds on which it objected to the application by close of business on 10 July 2018. The matter was listed for hearing at 8.30am on 13 July 2018.

[7] At 5:01PM on 10 July 2018, the Respondent filed its submission as to why an extension should not be granted to the protected action period. The Respondent submits that the bargaining process, which had continued for approximately seventeen (17) months, had stalled after the no feedback had been provided to a draft agreement put forward by the Respondent. The Respondent noted the impending commencement of ‘crushing season’ and submitted that extending the protection action period may result in it being:

“…held to ransom on negotiations and unfairly forced to an agreement due to the need to engage electricians on shift, and should protected action be taken, the crushing operations would be put in jeopardy, many dollars of sugar income could be lost due to production interruptions and a workforce of 45 directly and those engaged indirectly by our canegrowers be disrupted”. 2

[8] At the hearing Ms Neisha Traill, Industrial Officer, appeared for the CEPU, and Mr David Heck, Managing Director appeared for the Respondent. Mr Heck said at the hearing that the CEPU had not attended the most recent meeting on 20 June 2018 held between the Respondent and the bargaining representatives, and that the CEPU had not engaged in constructive bargaining and were not genuinely trying to reach an agreement. Mr Heck also said he was still awaiting on responses from the CEPU requested at the meeting. Mr Heck submits that if protected action were to be taken by CEPU members being shift electricians, this would have a significant impact on operations.

[9] In response to a question from me as to why an application from the AMWU in the same circumstances had not been objected to, Mr Heck said that the CEPU covers shift electricians who can have a greater impact on the mill’s operations than other employees.

[10] Ms Traill said that the CEPU had been bargaining constructively, and that responses had been given to the Respondent from a single bargaining unit, which included the CEPU and other unions who were bargaining representatives. Ms Traill further stated that the response indicated that it was from all Unions who were part of the single bargaining unit.

Legislation

[11] Section 459(1) of the Act outlines the circumstances in which industrial actions may be authorised by a protected action ballot and states 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.”

[12] Section 459(3) of the Act provides that the Commission may extend the 30-day period in certain circumstances and states that:

(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

[13] A right to take protected industrial action accruing under s.459(1) has been considered to be qualified by the limiting factor that employees must “use it or lose it”. 3 The Commission has a discretionary power to extend the 30-day period as provided under s.459(3), and that power may be exercised in circumstances where the application for an extension is made either before or after the expiry of the 30-day period.4

[14] It has been held that the Commission’s discretion under s.459(1) should be exercised in circumstances where it is demonstrated that bargaining is proceeding and that an extension is consistent with the objectives of the Act as expressed in s.436. 5 The Commission may take a wide approach in exercising its discretion and is not conditioned by any statutory direction in that respect.6 Parliament has previously provided for a one-off extension of the protected action period without the need for a further ballot, and cogent reasons will need to be advanced by the objecting party for the application to be refused, such as evidence of a change in disposition or composition of employees.7

[15] Previous circumstances in which extensions to the protected action period have been granted include where the parties are continuing to bargain in good faith; there has not been a lengthy delay between the expiry of the original 30-day period and the date of the application for an extension; 8 parties have participated in conciliation during the original 30 day period;9 or have refrained from taking industrial action and bargained constructively.10 It is considered that if an overly restrictive view is taken of the circumstances in which the discretion will be exercised, it may result that industrial action may be taken in a number of forms during the original 30-day period simply to preserve the right to take such action 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.

[16] The term ‘extension’ implies that the starting reference point for the extension is the date upon which the original 30-day period expired. The time for the extension should run from no later than that date, such that if a second 30-day protected action period were granted it would include the last day of the original 30-day period, and would provide a 29-day extension for protected industrial action from that date. 11

Conclusion

[17] In the present case, it is not contested that CEPU members have not yet taken protected industrial action as was authorised by way of the protected action ballot and the declaration of the AEC. The period has not been previously extended and it is not contested that the bargaining process remains on foot.

[18] There is no evidence to establish 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. I accept that bargaining has not been progressed as expeditiously as the Respondent wished and that the crushing season is due to start. However I do not accept that any delay in finalising an agreement can be solely attributed to the CEPU. Further, the fact that the shift electrician role held by members of the CEPU is critical is not of itself a sufficient reason for refusing the present application.

[19] Accordingly, the application for an extension is granted. In the absence of any evidence or submissions to the contrary, I have also decided that the extension will operate for a period of 29 days from 8 July 2018, the date upon which the first 30 day period expired. The Commission is available to assist the parties in finalising an agreement.

[20] An order reflecting this decision will be issued and the extension period will operate to the date of 6 August 2018.

DEPUTY PRESIDENT

Appearances:

Ms N Traill on behalf of the CEPU.

Mr D Heck on behalf of the Respondent.

Hearing details:

2018.

13 July.

Brisbane

Printed by authority of the Commonwealth Government Printer

<PR608952>

 1   PR607063

 2   Respondent submission filed 10 July 2018

 3   EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2022, [19].

 4   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].

 5   National Union of Workers v Symbion Pharmacy Services Pty Ltd [2009] FWA 1284 per O’Callaghan SDP at [11].

 6   Re: Transport Workers’ Union of Australia [2011] FWA 1097 per Lewin C.

 7   MUA v DP World Adelaide Pty Ltd [2010] FWA 7638 per Hampton C.

 8   National Union of Workers v Symbion Pharmacy Services Pty Ltd op. cit.

 9   AMACSU and Others v Flinders Operating Services Pty Ltd T/As Alinta Energy op. cit.

 10   MUA v DP World Adelaide Pty Ltd op. cit.

 11   AMACSU and Others v Flinders Operating Services Pty Ltd T/as Alinta Energy op. cit.