Transport Workers' Union of Australia

[2016] FWC 4203

[2016] FWC 4203

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

Transport Workers' Union of Australia
(B2016/650)

DEPUTY PRESIDENT SAMS SYDNEY, 27 JUNE 2016

Application to extend the 30-day period in relation to B2016/489 - extension granted.

[1] On 22 June 2016, the Transport Workers’ Union of Australia (the ‘Union’) lodged 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 Senior Deputy President Hamberger on 28 April 2016 [PR579663] for a further 30 days. The respondent employer is Remondis Australia Pty 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] On 24 June 2016, I directed my Associate to write to the respondent’s solicitor, Mr N Chadwick to determine whether the respondent formally objected to the extensions sought by the Union. On 27 June 2016, Mr Chadwick responded on behalf of his client that the making the orders sought was a matter for the Commission.

[4] As the application is properly before the Commission and the period has not previously been extended. I am satisfied that the two factual preconditions set out in s 459(3) have been met. In my view, there are no discretionary reasons why the application should not be granted. Accordingly, I will order that the 30 day period which ends on 25 June 2016 be extended by a further thirty days. An order to that effect will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR582099>