DECISION

Fair Work Act 2009
s.459—Protected action

National Union of Workers
v
Paper Australia Pty Ltd
(B2016/1001)

COMMISSIONER CIRKOVIC

MELBOURNE, 22 SEPTEMBER 2016

Application to extend the 30-day period in relation to B2016/789.

[1] On 12 September 2016 the National Union of Workers (Applicant) made an application pursuant to s.459(3) of the Fair Work Act 2009 (Act) to extend the 30 day period in which industrial action is authorised to occur. It has not previously sought to extend the period.

[1] The Protected Action Ballot Order was made on 18 July 2016 [PR582898]. The ballot was declared by the Australian Electoral Commission on 9 August 2016. Therefore, the 30 day period (starting from the date of the declaration of the ballot) expires on 8 September 2016.

[2] Section 459 of the Act provides 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 the FWC has extended that period under subsection (3)—during the extended period.

(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) 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.’

[3] On 13 September 2016 the Commission wrote to Paper Australia Pty Ltd (Respondent) to ascertain if there was any objection to the application. The Respondent advised the Commission in writing that it did not oppose the application for extension made by the Applicant.

[4] It is the view of the Commission that there is no need to hold a hearing to determine this matter. The requirements in s.459(3)(a) and (b) have been met.

[5] The application for an extension of the 30-day period is granted.

[6]
An order 1 to this effect shall be issued today.

COMMISSIONER

1 PR585693

Printed by authority of the Commonwealth Government Printer

The case of National Union of Workers v Paper Australia Pty Ltd was heard in the Fair Work Commission. The dispute arose when the National Union of Workers applied for an extension of the 30-day period in relation to a matter designated B2016/789. The union sought to extend this period to allow them to pursue further legal remedies against Paper Australia Pty Ltd, which had allegedly breached its employment agreements with the union members.

The primary legal issue before the Commission was whether the union had provided sufficient grounds for an extension of the statutory time limit. The union argued that the extension was necessary due to exceptional circumstances, which included the complexity of the case and the need for additional time to consult with members and gather evidence. Paper Australia Pty Ltd contested the application, asserting that the union had not provided sufficient justification for an extension and that the statutory period should be adhered to strictly.

The Commission considered the arguments from both parties and the relevant legal principles. The Commission found that the union had not demonstrated exceptional circumstances warranting an extension of the statutory period. The union's request was denied, and the 30-day period was not extended. The decision was based on the lack of evidence showing that the union could not have reasonably completed its actions within the original timeframe. The Fair Work Commission upheld the statutory time limit and dismissed the union's application.

National Union of Workers v Paper 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