The Association of Professional Engineers, Scientists and Managers, Australia v v/Line Pty Ltd

[2013] FWC 4200

[2013] FWC 4200

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459—Protected action

The Association of Professional Engineers, Scientists and Managers, Australia
v
V/Line Pty Ltd
(B2013/993)

COMMISSIONER BISSETT MELBOURNE, 27 JUNE 2013

Application to extend the 30-day period in relation to B2013/879.

[1] The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) 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 the respective protected action ballot.

[1] The Protected Action Ballot Order was made on 16 May 2013 [PR537001]. The ballot was declared by the Australian Electoral Commission on 7 June 2013. The 30-day period starting from the date of the declaration of the ballot, expires on 7 July 2013.

[2] APESMA lodged the application to extend the 30-day period on 26 June 2013. They have not previously sought to extend the period.

[3] 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.

[4] On 26 June 2013, upon receipt of a related application by the CEPU, my associate contacted a representative of V/Line Pty Ltd to determine if the company had any submissions it wished to make on the CEPU application. V/Line Pty Ltd subsequently advised my chambers in writing on 26 June 2013 that it did not oppose the CEPU application and that it did not oppose the APESMA application which it understood had recently been made.

[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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