National Union of Workers v Symbion Pharmacy Services Pty Ltd

[2009] FWA 1284

[2009] FWA 1284

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

National Union of Workers
v
Symbion Pharmacy Services Pty Ltd
(B2009/11051)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 25 NOVEMBER 2009

Application to extend the 30 day period in relation to B2009/10756.

[1] On 16 November 2009 the National Union of Workers (NUW) lodged an application to extend the 30 day period in which industrial action is authorised by a protected action ballot. This application was made pursuant to section 459 of the Fair Work Act 2009 (the Act) and related to protected industrial action conducted by members of the NUW employed by Symbion Pharmacy Services Pty Ltd (Symbion) at its Underdale, South Australia facility.

[2] The application was the subject of a hearing on 23 November 2009. At this hearing Mr Richardson appeared for the NUW and Mr Brotherson, of counsel appeared, by permission, for Symbion.

[3] A protected action ballot order 1 was made on 8 October 2009. Pursuant to subsection 443(5) of the Act, this order provided for seven days notice of the proposed industrial action referenced in section 414(2)(a) in recognition of Symbion’s function as a distributor of important pharmaceutical products. The Australian Electoral Commission subsequently conducted the ballot. The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 16 October 2009.

[4] No protected industrial action has subsequently occurred. Both parties agree that their ongoing negotiations have bought them close to an agreement but that such an agreement has not yet been achieved.

[5] Section 459 relevantly states:

“(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.”

[6] This provision provides Fair Work Australia with a discretion to extend the period within which protected industrial action may be commenced.

[7] Subsection 459(1) provides some clear guidance as to the exact duration of the 30 day period. This subsection states:

“(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.”

[8] On this basis, the 30 day period expired at midnight on 14 November 2009. An immediate issue goes to the extent to which the discretion in subsection 459(3) is available to Fair Work Australia if the application for an extension is made after the initial 30 day period has expired. In this respect the distinction between an extension and the granting of a new 30 day period becomes relevant.

[9] I have concluded that the capacity exists for Fair Work Australia to provide for an extension of the initial 30 day period even if an application to this effect is made shortly after the expiry of that period. However, the longer the delay between the expiry of the initial 30 day period and the application for an extension being made, the more likely it is that the extension application will be refused and a new protected action ballot will be required.

[10] It seems to me that the scheme of the Act is such that it allows protected industrial action to be taken, or to be threatened as a bargaining device within the time limits specified in the Act. It may not be until the 30 days is all but achieved that the agreement negotiation status is clear. If an application for an extension of the 30 day period is required before the expiration of that period, this has the potential to invite applications for extensions as a matter of course and thus potentially institute debate over a longer period as a characteristic of the bargaining process.

[11] In contrast, it appears to me that subsection 459(3) provides the capacity for Fair Work Australia to extend the initial 30 day period, from the 30th day, in situations where it can be demonstrated that bargaining is proceeding, and an extension is consistent with the objects of this Part of the Act as specified in section 436.

[12] I do not consider that subsection 459(3) provides the discretion for Fair Work Australia to provide for a further or second period of 30 days to commence from a date different to the expiry of the initial 30 day period, as this would equate to the making, by order of, a protected action period without an underpinning ballot.

[13] I have considered the NUW application on this basis.

[14] The NUW position is that, notwithstanding that the parties are close to an agreement, the capacity to engage in protected industrial action is a necessary bargaining device, so as to effect the best possible member outcome.

[15] The Symbion position is that, notwithstanding the seven-day notice for protected industrial action, the nature of the business and the proximity to Christmas represent a basis upon which the capacity to now take protected industrial action should be refused. In the alternative, Symbion argue that any additional time made available for the protected industrial action should be substantially less than 30 days so as to avoid the potential for a disruption to the supply of life saving drugs over the Christmas period. In this respect, Symbion particularly refer to concerns about the 2 to 3 weeks prior to Christmas.

[16] Whilst I consider that subsection 459(3) provides the discretion for Fair Work Australia to provide for an extension of the initial 30 day period by up to a further 30 days, there is no requirement for any extension to amount to 30 days. I am satisfied that a full 30 day extension is appropriate in these circumstances.

[17] Three factors are particularly relevant in this respect. Firstly, there is no suggestion that the parties are doing anything other than bargaining in good faith such that I should provide for a lesser extension. Secondly, the requirement that seven days notice of protected industrial action be given means that, in the event that the NUW did seek to actually take protected industrial action, the period within which this action can be commenced is already relatively short. Finally, the provisions of section 424 provide that protected industrial action which is commenced, or threatened, pending or probable may be suspended or terminated. Whilst I do not expect that the application of this section will be necessary, its existence provides a protection for Symbion and the consumers of its products.

[18] An Order (PR991130) reflecting this decision will be issued. The extension period will operate from 15 November 2009.

SENIOR DEPUTY PRESIDENT

Appearances:

P Richardson for the National Union of Workers.

K Brotherson counsel for Symbion Pharmacy Services Pty Ltd.

Hearing details:

2009.

Adelaide (and video-link to Sydney)

November 23.

 1  PR989768

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<Price code A, PR991127>