Independent Education Union of Australia v Moreton Bay College

[2014] FWC 2120

[2014] FWC 2120

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

Independent Education Union of Australia
v
Moreton Bay College
(B2014/638)

COMMISSIONER BOOTH BRISBANE, 31 MARCH 2014

Extension of protected action in relation to Moreton Bay College in B2014/556.

[1] On 28 March 2014, Independent Education Union of Australia 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 B2014/556. The relevant employer is Moreton Bay College.

[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 the Fair Work Commission (the Commission) 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. On the basis of the material before me, I am satisfied that each of the requirements of the Act as are relevant to this application have been met.

[4] The employer’s representative provided a written response on 31 March 2014 to the Application and indicated that it did not oppose an extension of time.

[5] 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.

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

COMMISSIONER

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