Textile, Clothing and Footwear Union of Australia v The Dempsey Group Pty Ltd

[2012] FWA 4322

[2012] FWA 4322

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.459—Protected action

Textile, Clothing and Footwear Union of Australia
v
The Dempsey Group Pty Ltd
(B2012/800)

COMMISSIONER BISSETT MELBOURNE, 18 MAY 2012

Application to extend the 30-day period in relation to B2012/636.

[1] The Textile, Clothing and Footwear Union of Australia (TCFUA) has made an application pursuant to s.459(3) of the Fair Work Act 2009 (the Act) to extend the 30-day period in which industrial action is authorised by a protected action ballot.

[2] The protected action ballot order was made on 29 March 2012 [PR521854]. The ballot was declared by the Australian Electoral Commission on 18 April 2012. The 30-day period, starting from the date of the declaration of the ballot, expires on 18 May 2012.

[3] The TCFUA lodged the application to extend the 30-day period on 18 May 2012. It had not previously sought to extend the period.

[4] Section 459 of the Act reads 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 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.

(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) 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.

[5] In my opinion there is no need to hold a hearing to determine this matter. The requirements in s.459(3)(a) and (b) have been met.

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

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

COMMISSIONER

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