Transport Workers' Union of Australia

[2011] FWA 1104

[2011] FWA 1104

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Transport Workers' Union of Australia
(B2011/2557)

COMMISSIONER LEWIN MELBOURNE, 18 FEBRUARY 2011

Application to extend the 30-day period in relation to B2010/3729.

[1] This Decision concerns an application by the Transport Workers’ Union of Australia (the TWU) to extend the 30 day period in which industrial action is authorised by a protected action ballot pursuant to s.459(3) of the Fair Work Act 2009 (the Act), which is set out below:

“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.

[2] The application relates to a protected action ballot order made by me on 17 December 2010 in matter B2010/3729. The ballot was declared by the AEC on 18 January 2011. An overwhelming number of employees eligible to vote in the ballot approved each form of industrial action proposed for consideration in the ballot 1. The TWU was the applicant for that Order2. The application to extend the 30 day period in which industrial action is authorised by that protected action ballot was filed on 11 February 2011 and listed for Hearing by video link between Melbourne and Sydney on 17 February 2011. Mr Michael Burns of the TWU appeared from Sydney. Mr Luke McCrone of the TWU appeared in Melbourne. Mr Stuart Wood, of counsel, was granted permission to appear for Murray Goulburn Co-operative Limited in Melbourne. The application was opposed by Murray Goulburn Cop-Operative Limited.

[3] I have decided to grant the application. An order will issue accordingly. The order will operate on and from today’s date. I will produce written reasons for this decision.

COMMISSIONER

Appearances:

Mr M Burns and Mr L McCrone, of the TWU for the TWU.

Mr S Wood, of counsel, for Murray Goulburn Co-operative Limited.

Hearing details:

2011

February 17

Melbourne

 1   Declaration of 18 January issued by the Australian Electoral Commission in matter B2010/3729.

 2   PR505243.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR506909>