Construction, Forestry, Mining and Energy Union

[2015] FWC 4016

[2015] FWC 4016

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

Construction, Forestry, Mining and Energy Union
(B2015/596)

DEPUTY PRESIDENT ASBURY BRISBANE, 15 JUNE 2015

Application to extend the 30-day period in relation to B2015/443.

Background

[1] On application of the Construction, Forestry, Mining and Energy Union (the CFMEU), on 14 April 2015 the Commission as presently constituted ordered that a protected action ballot be held in relation to employees of Anglo Coal (Capcoal Management) Pty Ltd (the Respondent) who are eligible members of the CFMEU, who are covered by the Capcoal Surface Operations Trades Union Collective Agreement 2010 and would be covered by the proposed agreement. 1 The ballot was ordered to be conducted by the Australian Electoral Commission (the AEC).

[2] On 15 May 2015, 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 this date.

[1] On 12 June 2015, the CFMEU 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 agreement.

[2] The Commission sought the Respondent’s position as to the application and on 15 June 2015 an email was received from Ms Amanda Baker, Human Resource Manager of the Respondent. Ms Baker advised that the Respondent did not object to the extension being granted.

[3] The CFMEU submits that the Fair Work Commission (the FWC) should exercise discretion under s.459(3) of the Act to extend the 30 day period, on the following grounds as set out in the Application:

• To date the CMFEU’s members have not commenced any protected action;



• The negotiations are continuing; and



• An extension has not previously been granted.

Legislation

[4] Section 459(1) 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.”

[5] Section 459(3) 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

[6] Section 459(1) 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) 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

[7] 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

[8] 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.

[9] 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

[10] In the present case, it is uncontested that CFMEU members have not taken industrial action authorised by the ballot.

[11] There is no evidence to suggest that the CFMEU and its members are not bargaining in good faith or that the CFMEU and its members are not genuinely trying to reach agreement with the Respondent. 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 13 June 2015, the date upon which the first 30 day period will expire.

[12] An Order reflecting this decision will issue and the extension period will operate to 12 July 2015.

DEPUTY PRESIDENT

 1   PR563081.

 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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