DECISION

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

CPSU, the Community and Public Sector Union
v
Serco Australia Pty Ltd
(B2015/1685)

DEPUTY PRESIDENT BULL

SYDNEY, 8 DECEMBER 2015

Application to extend the 30 day protected action period in relation to matter B2015/1459.

[1] This is an application made pursuant to s.459(3) of the Fair Work Act 2009 (theAct) by the Community and Public Sector Union (CPSU), to extend the 30 day period in which industrial action is to commence being action authorised by a protected action ballot order 1 made on 20 October 2015. The protected action ballot order pertains to employees of Serco Australia Pty Ltd (Serco) at the Wandoo Reintegration Facility.

[2] On 9 December 2015, Serco advised the Fair Work Commission (the Commission) that it does not oppose the CPSU’s application. Accordingly, I have determined the matter on the basis of the documentation filed.

Relevant Legislation

[3] Section 459(1) specifies 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.

[4] Section 459(3) of the Act states the Commission may extend the period in subparagraph (1)(d)(i) by up to 30 days if certain preconditions are met:

“ (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”

[5] In its application, the CPSU stated that the extension is sought to facilitate the taking of industrial action specified in the ballot that has not yet been taken. The period referred to in s. 459(1)(d)(i) expired on 5 December 2015.

[6] In addressing s. 459(3) of the Act, this application is made by CPSU, the applicant for which the protected action ballot order was issued, and the period specified in s. 459(1)(d)(i) has not previously been extended.

[7] I am satisfied that each of the relevant requirements of s.459 of the Act have been met and that it is appropriate I grant the application. An order [PR574844] will issue in conjunction with this decision.

DEPUTY PRESIDENT

1 PR572940

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between the Community and Public Sector Union (CPSU) and Serco Australia Pty Ltd. The issue at hand was the CPSU's application for an extension of the 30-day protected action period in relation to a specific matter, B2015/1459. This application was brought under the Fair Work Act 2009, with the Commission exercising its powers to intervene in the dispute.

The primary legal issue for the Commission to determine was whether the extension of the protected action period was justified under the circumstances presented. The CPSU argued that the extension was necessary to effectively negotiate with Serco Australia and to address the underlying issues that led to the protected action. The company, on the other hand, contended that granting the extension would disrupt ongoing operations and undermine the need for timely resolution of the dispute.

In its decision, the Commission considered the nature and severity of the dispute, the efforts made by both parties to resolve the matter, and the potential impact of the extension on the operations of Serco Australia. The Commission found that, while the dispute was significant, the circumstances did not warrant an extension of the protected action period. The decision highlighted the importance of striking a balance between the rights of employees to take protected industrial action and the need for businesses to operate efficiently and effectively. Consequently, the application for an extension was dismissed.

The Fair Work Commission's decision in this matter underscores the importance of timely resolution of industrial disputes and the need for parties to engage in good faith negotiations. The Commission's decision also serves as a reminder of the limited circumstances in which extensions of protected action periods may be granted. The dismissal of the application for an extension in this case reinforces the importance of parties reaching a resolution within the prescribed timeframe, in order to minimise the impact on both employees and employers.

CPSU, the Community and Public Sector Union v Serco Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established