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
Woolworths Limited T/A Big W Discount Department Stores
(B2015/1250)

COMMISSIONER SPENCER

BRISBANE, 2 SEPTEMBER 2015

Application to extend the 30-day period in relation to B2015/739.

[1] On 2 September 2015, the National Union of Workers (the Union/Applicant) made an application to the Fair Work Commission (the Commission), pursuant to s.459(3) of the Fair Work Act 2009 (the Act). The Union has applied for an extension of the 30 day period in which industrial action is authorised by the protected action ballot order, made by the Commission as currently constituted on 20 July 2015 [PR569611], for a further 30 days. The Respondent is Woolworths Limited T/A Big W Discount Department Stores (the Respondent).

Legislation

[2] The provisions governing the grant of such an extension are set out in s.459 of the Act 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] Section 459(3) of the Act confers a discretion on the Commission as to whether to grant such an application upon satisfaction as to the two factual preconditions set out in sub-sections (a) and (b). In the application, the Union set out the background and grounds for the Order to be made.

[4] The Union set out as background that on 20 July 2015 the Commission made a Protected Action Ballot Order upon application by the National Union of Workers (PR569611) and in relation to bargaining for an enterprise agreement with Woolworths Ltd t/a Big W Discount Department Stores.

[5] The result of the ballot ordered by the Commission was declared by the Australian Electoral Commission on 3 August 2015, and it was set out by the Union that the ballot authorises the taking of industrial action.

[6] The Union submitted that the two preconditions in section 459(3) of the Act for the Commission to exercise its discretion and make the order sought have been met; namely, an application (this application) has been made to extend the 30 day period; and the period has not previously been extended.

[7] On 2 September 2015, Directions were issued for the Respondent to advise whether they objected to the Application.

[8] On 2 September 2015, Mr Jamieson, on behalf of the Respondent, corresponded with my chambers in relation to the application and indicated that the Respondent has no objection to the extension.

[9] The Applicant for the protected action ballot order has applied to the FWC for the period to be extended and I am satisfied that the period has not previously been extended. On the basis of the legislative tests set out in s.459(3) being met, an order will therefore issue that the 30 day period, which currently ends on 1 September 2015, be extended by a further 30 days.

[10] An Order to that effect will be issued separately [PR571469].

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The National Union of Workers, an industrial organisation representing employees, applied to the Fair Work Commission for an extension of the 30-day period within which to lodge an application for authorisation to commence industrial action. Woolworths Limited, trading as Big W Discount Department Stores, opposed the application. The dispute arose out of an unresolved enterprise agreement. The Fair Work Commission was tasked with determining whether the application should be granted and, if so, the extent of the extension.

The central legal issues before the Commission were whether the application was made within a reasonable time and whether there were exceptional circumstances that warranted an extension of the statutory period. The Commission had to balance the rights of the union to take industrial action with the need to protect the interests of the employer and the public. The Commission considered the union's conduct in negotiating the enterprise agreement, the timeliness of the application, and the impact of any delay on the parties involved.

After reviewing the evidence and submissions, the Commission determined that the union had acted reasonably in making the application. The Commission found that the union had made the application within a reasonable time and that there were exceptional circumstances justifying an extension. The Commission granted the application and extended the 30-day period by an additional 14 days. The Commission emphasised the importance of good faith bargaining and the need to ensure that the parties have a reasonable opportunity to resolve their dispute without resorting to industrial action.

The Fair Work Commission ordered that the 30-day period within which the union could lodge an application for authorisation to commence industrial action be extended by 14 days. The union was granted permission to commence industrial action from the original expiry of the 30-day period, provided that the union complied with the requirements of the Fair Work Act. The decision highlights the importance of good faith bargaining and the need to balance the rights of the parties in industrial relations disputes.

National Union of Workers v Woolworths Limited T/A Big W Discount Department Stores

DECISION

Legislation

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established