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

[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

(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

Printed by authority of the Commonwealth Government Printer

The Association of Professional Engineers, Scientists and Managers, Australia applied to the Fair Work Commission to extend the 30-day period for lodging a complaint under section 433 of the Fair Work Act 2009. The application was made in relation to a decision of v/Line Pty Ltd, which had previously been the subject of a complaint to the Commission. The Commission found that the original 30-day period had expired and that there was no basis to extend the time. The Association appealed this decision to the Federal Court of Australia.

The legal issues before the Court were whether the Association had established a sufficient basis for extending the 30-day period and whether the Commission's decision was unreasonable. The Court found that the Association had not established a sufficient basis for extending the 30-day period, as there was no evidence of any circumstances that would justify an extension. The Court also found that the Commission's decision was not unreasonable, as it was based on the evidence before it and the applicable legal framework.

The Court held that the Association's application to extend the 30-day period was dismissed. The Court found that the Association had not provided sufficient evidence to establish a basis for extending the time and that the Commission's decision was not unreasonable. The Court noted that the 30-day period is a strict statutory deadline and that extensions are only granted in exceptional circumstances. The Court held that the Association's application did not meet this standard.

The Court made no orders in relation to the application. The decision of the Commission was affirmed, and the Association's application to extend the 30-day period was dismissed. The Court noted that the strict time limits for lodging complaints under the Fair Work Act are an important part of the regulatory framework and that they must be adhered to unless there are exceptional circumstances that justify an extension.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established