Construction, Forestry, Mining and Energy Union v O'Brien Glass Industries Limited

[2010] FWA 5456

[2010] FWA 5456

FAIR WORK AUSTRALIA

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
v
O'Brien Glass Industries Limited
(B2010/3221)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 22 JULY 2010

Application to extend the 30 day period of authorised industrial action.

[1] On 16 July 2010, the Construction, Forestry, Mining and Energy Union (“the CFMEU”) made an application under s.459(3) of the Fair Work Act 2009 (“the Act”) to extend the period in which certain industrial action is to commence for purposes of s.459(1)(d)(ii) of the Act in respect of the B2010/58. The relevant employer is O'Brien Glass Industries Limited.

[2] Section 459 of the Act reads 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 FWA 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.

(2) If:

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(3) FWA 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 FWA for the period to be extended; and

(b) the period has not previously been extended.

[3] Section 459(3) of the Act vests a discretion in Fair Work Australia (“FWA”) in respect of whether to grant such an application upon the two factual preconditions (at s.459(3)(a) and 459(3)(b) of the Act) being made out.

[4] I spoke with the employer’s representative on 20 July 2010 in respect of this application, and sought its views as to whether it intended to contest the factual situation in relation to s.459(3)(a) and 459(3)(b) of the Act (including as to the types of industrial action taken within the first 30 day period) and, further, whether it intended to press any relevant considerations in relation to the discretion with which FWA is invested in the section.

[5] The employer provided an oral response to my query on 22 July 2010.

[6] In that response, the employer expressly indicated that it did not seek to resist the application under s.495 of the Act.

[7] There is no evidence before me that would dissuade me from exercising my discretion in favour of the Applicant in these circumstances.

[8] I therefore order that the 30-day period referred to in s.459(1)(d)(i) of the Act be extended by a further 30 days, pursuant to s.459(3) of the Act.

[9] An order to that effect will issue simultaneously with this decision.

SENIOR DEPUTY PRESIDENT

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