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

[2018] FWC 1186

[2018] FWC 1186

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Maritime Union of Australia, The

v

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

1. 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).

1. 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.

1. 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

1. 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.”

1. 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

1. 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.

1. 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.

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

1. 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. 

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

1. 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.

1. An order [PR600693] will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR600694>