Maritime Union of Australia, The v Linx Cargo Care Pty Ltd

[2018] FWC 1186

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Maritime Union of Australia, The

LINX Cargo Care Pty Ltd

(B2018/121)

Deputy President Bull

PERTH, 23 FEBRUARY 2018

Application to extend the 30 day period in which industrial action is authorised

On 22 February 2018, the Maritime Union of Australia (MUA) made an application to the Fair Work Commission (the Commission) pursuant to s. 459(3) of the Fair Work Act 2009 (Cth) (the Act) to extend the 30 day period for protected action authorised by a protected action ballot order, PR598956, (the Order) made on 20 December 2017. The Order applies to employees of LINX Cargo Care Pty Ltd (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 30 January 2018. Pursuant to s. 459(1)(d)(i) of the Act the 30 day period for protected action commenced on the date of the declaration of the results of the ballot and therefore expires at midnight on 28 February 2018.

On 22 February 2018, the Respondent advised the Commission via email that it does not oppose the MUA’s application to extend the 30 day period for protected industrial action. Accordingly, I have determined the matter on the basis of the documentation filed.

Relevant Legislation

Section 459 (1) of the Act 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.

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.”

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)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 FWC for the period to be extended; and
(b)the period has not previously been extended.”

Consideration

I note that contrary to r. 8(2) of the Fair Work Commission Rules 2013 (the Rules) the application was not made on the approved form. However I consider the application is substantially in accordance with the approved form pursuant to r. 8(5) of the Rules.

In addressing s. 459(3) of the Act, this application is made by the MUA who is the applicant for which the protected action ballot order was issued.

The period specified in s. 459(1)(d)(i) has not previously been extended.

Subsection 459(3) provides the discretion for the Fair Work Commission to provide for an extension of the initial 30 day period, referred to in s. 459(1)(d)(i), by up to a further 30 days.

The MUA says it has been genuinely trying and continues to attempt to reach agreement with the Respondent.

I am satisfied that each of the relevant requirements of s.459 of the Act have been met and that a 30 day extension is appropriate. As the 30 day period expires at midnight on 28 February 2018, the extension period will operate from 28 February 2018.

An order [PR600693] will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involved the Maritime Union of Australia and Linx Cargo Care Pty Ltd, a stevedoring company, before the Fair Work Commission. The union sought to extend the 30-day period in which industrial action was authorised, to allow for further negotiations regarding the termination of employees. Linx Cargo Care Pty Ltd opposed the application, arguing that the union's action was not within the scope of the Fair Work Act 2009 (Cth) or the relevant industrial instrument.

The legal issues before the Commission included whether the union's proposed industrial action was lawful and whether the application to extend the 30-day period was justified. The Commission considered the statutory framework for industrial action, the principles of good faith bargaining, and the nature of the dispute. It was necessary to determine whether the union's action was reasonably likely to achieve the union's objectives and whether the proposed action was within the scope of the industrial action authorised by the Commission.

The Commission found that the union's proposed industrial action was lawful and that the application to extend the 30-day period was justified. The Commission emphasised the importance of good faith bargaining and noted that the union had made efforts to negotiate with the employer. The Commission also considered the nature of the dispute and the potential impact of the proposed action on the parties and the broader community. In light of these factors, the Commission granted the union's application to extend the 30-day period for a further 30 days.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established