Transport Workers' Union of Australia v Boral Resources (NSW) Limited

[2009] FWA 1021

[2009] FWA 1021

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
v
Boral Resources (NSW) Limited
(B2009/11002)

COMMISSIONER LARKIN SYDNEY, 10 NOVEMBER 2009

Application to extend the 30-day period of authorised industrial action.

[1] On 6 November 2009, the Transport Workers’ Union of Australia (TWU) made application under s.459(3) of the Fair Work Act 2009 (the FW Act) to extend the 30-day period (referred to in s.459(1)(d)(i) of the Act) during which industrial action is authorised by a protected action ballot. The ballot in question was conducted in accordance with an order of Senior Deputy President Hamberger issued on 25 September 2009 [PR989509].

[2] Section 459 of the Act states:

“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.”

[3] In its application the TWU set out its grounds for the application as follows:

“1. The applicant Transport Workers’ Union of Australia (TWU) and the respondent Boral Resources (Country) Pty Ltd (Boral) have been engaged in negotiations for a workplace agreement for a number of months.

2. On 25 September 2009 his Honour Senior Deputy President Hamberger granted the TWU’s application for a protected action ballot order in matter BP2009/10707 (sic). Industrial action was subsequently endorsed by a ballot of employees, the result of which was declared on 15 October 2009.

3. In the absence of any extension of time by Fair Work Australia, that authorisation of industrial action will lapse on Friday 13 November 2009.

4. The issues remaining in dispute between the parties are limited and are likely to be resolved by a further period of negotiation.

5. The period of authorisation has not been previously extended.

6. It is anticipated that Boral will not resist the application.

7. This application should be granted to allow the parties to continue negotiations and avoid the need for industrial action.”

[4] On 10 November 2009 correspondence was received from Boral Resources (NSW) Limited (Boral Resources) which, inter alia, stated:

“Dear Ms Turner,

B2009/11002 – Application by the Transport Workers Union of Australia for an Order to Extend to (sic) 30 day period under Section 459(3) of the Fair Work Act 2009

We refer to the above matter, which is listed for hearing before Commissioner Larkin today at 4:30pm.

As we understand the requirements of s 459(3) of the Fair Work Act 2009, it is a matter for Fair Work Australia to determine whether the 30 day period should be extended, that is, Fair Work Australia does not require Boral’s consent to deal with this application.

In addition, we note that in proceedings on 5 November 2009 before Commissioner Larkin in B2009/10981, Boral indicated that it would not oppose the application by the Transport Workers Union of Australia, if such an application was made.

…

Thank you for your assistance.

Yours faithfully,

Kristen Barratt

ACM National Legal Officer (Employment and Industrial Relations)”

[5] The TWU was the applicant for the protected action ballot and has applied to extend the 30-day period referred to in subparagraph (1)(d)(i) of s.459. The 30-day period has not been previously extended. Boral Resources do not oppose the application.

[6] On the material before me I am satisfied that the discretion vested in Fair Work Australia pursuant to s.459(3) of the FW Act should be exercised in the circumstances of this matter. The 30-day period, referred to in s.459(1)(d)(i) of the FW Act, is therefore extended by a further 30 days.

[7] An order reflecting this decision will issue separately.

COMMISSIONER

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