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
Broadspectrum (Australia) Pty Ltd
(B2018/678)

DEPUTY PRESIDENT BEAUMONT

PERTH, 6 AUGUST 2018

Application to extend the 30-day period in relation to B2018/467.

[1] On 2 August 2018, the Transport Workers’ Union of Australia (TWU) made an application to extend the 30-day period in relation to B2018/467 1, in which industrial action is authorised by the protection action ballot order (PABO) made by the Commission on 13 June 20182. The TWU have applied for an extension under s.459(3) of the Fair Work Act 2009 (Cth) (Act) for a further 30 days in which protection industrial action can be taken. The Respondent is Broadspectrum (Australia) Pty Ltd (Respondent).

LEGISLATION

[2] The Act sets out the following:

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 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] Section 459(3) of the Act confers discretion on the Commission to grant an application if the preconditions set out in sub-sections (a) and (b) are met. Namely, that an application has to be made to extend the 30 day period; and the period has not previously been extended.

[4] The result of the PABO was declared by the Australian Electoral Commission on 17 July 2018 (Declaration).

[5] On 3 August 2018, the Respondent was directed to inform the Commission if it objected to the application. On the same day, Mr Danny Klepas, Group Employment Counsel at Broadspectrum, sent correspondence to my Chambers indicating the Respondent had no objection to the application.

[6] I am satisfied that the preconditions set out ss.459(3)(a) and (b) are met in the circumstances. Therefore I have determined to exercise my discretion to issue an Order 3 that the 30 day period, authorised by the PABO, in accordance with s.459(1)(d)(i) is extended by a further 30 days from 15 August 2018, the end date of the 30 day period authorised by the PABO starting on the date of the Declaration.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR608040.

2 PR608038.

3 PR609689.

In the Fair Work Commission, the Transport Workers' Union of Australia sought to extend the 30-day period to file an application for review under section 478 of the Fair Work Act 2009. The dispute centred around an earlier decision by the Commission in a matter involving Broadspectrum (Australia) Pty Ltd. The Union argued that they were unable to file their application within the stipulated 30-day period due to circumstances beyond their control, and thus requested an extension. The legal issues before the Commission were whether the Union's circumstances justified an extension of the statutory time limit, and if so, what the appropriate duration of the extension should be.

The Commission considered the Union's application and the relevant statutory provisions. It was noted that section 478 of the Act provides for a 30-day period within which an application for review must be made, but this does not preclude the possibility of an extension in certain circumstances. The Commission took into account the Union's explanation for the delay and the impact of the delay on the respondent. The Union argued that the delay was due to a combination of factors, including reliance on advice from a legal practitioner and the complexity of the case. The Commission concluded that the Union's explanation was reasonable and that the delay did not significantly prejudice the respondent. Therefore, the Commission granted the Union an extension of the 30-day period.

The Commission ordered that the Union's application for review, which had been lodged outside the initial 30-day period, be accepted as timely. The specific duration of the extension was not explicitly stated in the decision, but the application was deemed to be within the permissible timeframe. This outcome allowed the Union to proceed with their application for review, ensuring that their rights under the Act were not unfairly prejudiced by circumstances beyond their control.

Transport Workers' Union of Australia v Broadspectrum (Australia) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established