National Union of Workers v Woolworths Ltd

[2015] FWC 8065

[2015] FWC 8065

FAIR WORK COMMISSION

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 Ltd
(B2015/1622)

DEPUTY PRESIDENT SAMS SYDNEY, 23 NOVEMBER 2015

Application to extend the 30-day period in relation to B2015/1343 - extension granted.

[1] On 18 November 2015, the National Union of Workers (the ‘Union’) made an application, pursuant to s 459(3) of the Fair Work Act 2009 (the ‘Act’) to extend the period in which certain industrial action may be taken in respect of the protected action ballot order made by the Commission as presently constituted on 24 September 2015 [PR572236] for a further 30 days. The respondent employer is Woolworths Ltd.

[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, Mr G Moase,for the Union set out the following grounds for the order to be made:

‘1. The two preconditions in section 459(3) of the Act for the FWC to exercise its discretion and make the order soguht 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.

2. Since the declaration of the results of the ballot, the NUW has genuinely tried to reach an agreement with Woolworths and continues to do so.

3. The expiry of the period in which employees can take industrial action by a significant majority and there is no evidence that the views of employees who participated in the ballot have changed.

4. The ballot approved the taking of industrial action by a significant majority and there is no evidence that the views of employees who participated in the ballot have changed.

5. Not making the order sought encourages employees to engage in industrial action within the original 30 day period regardless of the necessity of the taking of the action in the context of bargaining.

6. Not making the order sought penalises the NUW and employees for whom it is a bargaining representative for acting constructively to date by not exercising the right to engage in protected industrial action authorised by the ballot.

7. There is no cogent reason not to issue the extension sought.

8. Any other ground the applicant may advance during the course of hearing this application.

9. Any other ground the tribunal considers appropriate.’

[4] On 23 November 2015, Mr B Walker for the respondent corresponded with my Chambers advising that the respondent did not formally object to the application being granted. Given that the two factual preconditions set out in s 459(3) have been met and that there are no considerations which would militate against my discretion to refuse the application, I intend to grant it. I will therefore order that the 30 day period which ends on 22 November 2015 be extended by a further thirty days.

[5] An order to that effect will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

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