National Union of Workers v H.A.G. Import Corporation (Australia) Pty Ltd

[2013] FWC 1931

[2013] FWC 1931

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459—Protected action

National Union of Workers
v
H.A.G. Import Corporation (Australia) Pty Ltd
(B2013/734)

JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT BRISBANE, 28 MARCH 2013

s.459 Application to extend the 30 day period in which industrial action is authorised by protected action ballot.

[1] The National Union of Workers (NUW) has made an application pursuant to s.459 (3) of the Fair Work Act 2009 (the Act) for the extension of the period for the commencement of industrial action which was authorised by a protected action ballot.

[2] The application relates to a protected action ballot which was ordered by the Fair Work Commission (the Commission) on 8 February 2013 (PR533967) in a matter involving the NUW and H.A.G Import Corporation (Australia) Pty Ltd (the Company) (B2013/598). The result of the ballot was declared on 28 February 2013 with a majority of the relevant employees of the Company approving the taking of various forms of industrial action.

[3] Subsection 459 (3) of the Act provides:

“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.”

[4] This subsection gives the Commission a discretion to extend the 30 day period for the commencement of protected industrial action provided that the requirements in s.459 (3)(a) and (b) are met. It is clear that these requirements are met in this matter.

[5] The grounds relied upon by the NUW in its application for the extension of the 30 days period include the following:

• The NUW has progressed the agreement making agenda and continues to be genuinely trying to reach agreement with the Company for an enterprise agreement and bargaining in good faith;



• The expiry of the period in which employees can take protected industrial action would be prejudicial to the NUW but would not cause undue prejudice to the Company;



• Not making the order may encourage unions to take all forms of industrial action approved in the protected action ballot within the 30 day period and may penalise unions for acting constructively by not exercising their rights to take all forms of industrial action; and



• The Commission should grant the extension for the full 30 days because an extension of 30 days would provide the maximum time to try and negotiate an agreement without forcing the NUW to take all forms of industrial action to preserve its rights to take them in the future.

[6] The NUW’s application was not supported by the Australian Industry Group (AIG) as representative for the Company. In a short written submission, the AIG said that if a party seeking to initiate protected industrial action is not ready to take the action, the protected action ballot process should not be used as a bargaining tool or bluff. The Company does not wish to encourage industrial action and would much prefer that considered negotiation be used to resolve the issues between the parties. It was also submitted that “we are of the view that the employees who initially voted in the protected action ballot should be given an opportunity through another ballot to voice their current views on industrial action and it should not be assumed by any party that their views are unchanged.”

[7] In written submissions in response, the NUW contested that there are “any grounds to believe that the disposition of the majority of employees towards the authorisation of industrial action may have changed” and suggested that it would be unfair to employees not to grant the extension sought. It was said that this would have the effect of delaying or frustrating the taking of protected industrial action for the purposes of making an agreement. Further it was said that the NUW has actively pursued its bargaining interests during the preceding 30 day period and has had numerous discussions with the Company during this period.

[8] The matter was listed for hearing on 27 March 2013. The hearing did not proceed as both the NUW and the Company indicated that they were content to rely upon their written submissions.

[9] In all the circumstances of this matter, I have come to the conclusion that the period should be extended by 30 days as sought by the NUW.

[10] The legislation provides for such extensions to be granted by the Commission and no persuasive reasons have been advanced as to why an extension should not be granted in the present matter. The NUW has indicated that there have been continued negotiations during the period since the ballot was declared and that it is still trying to reach agreement with the Company for an enterprise agreement. The extension of the period will provide a further opportunity for the negotiations to be advanced without early resort to the taking of protected industrial action. It is desirable and in the interests of all concerned that the negotiations be continued and if possible concluded without the taking of industrial action.

[11] The bargaining regime under the Act provides for the taking of protected industrial action which is authorised by a ballot of the employees concerned and which commences within a period of 30 days from the declaration of the ballot. That period can be extended once by the Commission for up to 30 days. The parties conduct their negotiations and bargaining within that context and will no doubt seek to maximise their bargaining positions in various ways. The 30 day period for the commencement of the protected industrial action, with the possibility of a once-off extension of this period for up to 30 days, ensures that such action is taken proximate to the ballot being held. Although the Commission must consider all the circumstances in deciding whether to extend the period, an overly rigid exercise of the discretion may result in forcing employees into commencing industrial action where matters might be able to be negotiated and resolved through further bargaining and without the need to resort to such action.

[12] In determining whether to extend the period for the commencement of protected industrial action a range of considerations may be relevant. These would include possible changes in the attitude of employees who participated in the protected action ballot as a result of progress made in the negotiations or other developments since the ballot was conducted. However in the present matter, apart from assertions by the Company, there is no basis to conclude that the views of the employees who participated less than one month ago in the protected action ballot have changed. Indeed this is refuted by the bargaining representative of the relevant employees, the NUW.

[13] Having regard to the grounds relied upon by the NUW in support of its application and the limited submissions and material put in opposition, I am satisfied that it is appropriate in this matter to extend the period referred to in s.459 (1)(d)(i) by 30 days. An order to this effect [PR535253] will be issued in conjunction with this decision.

SENIOR DEPUTY PRESIDENT

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