Transport Workers' Union of Australia (NSW Branch) v Orica Australia Pty Ltd T/A Orica Australia Summary

[2019] FWC 2126

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Transport Workers’ Union of Australia (NSW Branch)
v
Orica Australia Pty Ltd T/A Orica Australia

(B2019/269)

Vice President Catanzariti

SYDNEY, 3 APRIL 2019

Application to extend the 30-day period in relation to B2019/83.

On 2 April 2019, the Transport Workers’ Union of Australia (NSW Branch) (Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s. 459(3) of the Fair Work Act 2009 (Cth) (the Act) to extend the 30 day period for protected action authorised by a protected action ballot order, PR704746 (the Order) made on 14 February 2019. The Order applies to certain employees of Orica Australia Pty Ltd T/A Orica Australia (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 14 March 2019. Pursuant to s. 459(1)(d)(i) of the Act, the 30 day period for protected action commenced on the date of the declaration of the results of the ballot and therefore expires at midnight on 12 April 2019.

On 2 April 2019, the Respondent advised the Commission via email that it does not oppose the Transport Workers’ Union of Australia’s (NSW Branch) application to extend the 30 day period for protected industrial action. Accordingly, I have determined the matter on the basis of the documentation filed.

In addressing s.459(3) of the Act, this application is made by the Transport Workers’ Union of Australia (NSW Branch) who is the Applicant for which the protected action ballot order was issued. Furthermore, the period specified in s.459(1)(d)(i) has not been previously extended.

On that basis and on the material before me, I am satisfied that each of the relevant requirements of s.459 of the Act have been met and that a 30 day extension is appropriate. As the 30 day period expires at midnight on 12 April 2019, the extension period will operate from 12 April 2019.

An order has been separately issued in PR706491.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia (NSW Branch) applied to the Fair Work Commission for an extension of the 30-day period for protected action, as authorised by a ballot order. The protected action in question was authorised by an order made on 14 February 2019, following a ballot where a majority of employees endorsed the proposed forms of industrial action. The 30-day period for taking protected action began on the date of the declaration of the ballot results, 14 March 2019, and was set to expire on 12 April 2019. The application for an extension was made on 2 April 2019, and the employer, Orica Australia Pty Ltd, did not oppose the application.

The legal issue before the Commission was whether the 30-day period for taking protected action could be extended under section 459(3) of the Fair Work Act 2009. This section provides that the Commission may extend the period if it is satisfied that certain conditions have been met, including that the period has not been previously extended and that each of the relevant requirements of section 459 of the Act have been satisfied. The Commission also considered the need for any extension to be appropriate in the circumstances.

The Commission found that the conditions for an extension had been met and that an extension was appropriate. The 30-day period for protected action was therefore extended from 12 April 2019. The decision was based on the documentation filed by the Applicant and the fact that the employer did not oppose the application. The Commission noted that the extension period would operate from 12 April 2019.

Transport Workers' Union of Australia (NSW Branch) v Orica Australia Pty Ltd T/A Orica Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established