Transport Workers' Union of Australia v Donric Pty Ltd t/a Sunbury Bus Service and Sunbury Coaches

[2019] FWC 7304

[2019] FWC 7304

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459—Protected action

Transport Workers’ Union of Australia
v
Donric Pty Ltd t/a Sunbury Bus Service and Sunbury Coaches
(B2019/1216)

DEPUTY PRESIDENT COLMAN MELBOURNE, 22 OCTOBER 2019

Application to extend the 30-day period for the commencement of protected industrial action

[1] This decision concerns an application made by the Transport Workers’ Union of Australia (TWU) under s 459(3) of the Fair Work Act 2009 (Act) for an order to extend the 30-day period within which protected industrial action must commence.

[2] The TWU is a bargaining representative for a proposed enterprise agreement to cover certain employees of Donric Pty Ltd, which trades as Sunbury Bus Service and Sunbury Coaches.

[3] On 23 August 2019, Deputy President Gostencnik issued an order for a ballot of employees who are employed by the company and represented by the TWU as bargaining representative, and who would be covered by a proposed agreement. Pursuant to the order [PR711653], the ballot was conducted by the Australian Electoral Commission (AEC). The results of the ballot were declared on 20 September 2019.

[4] There were four questions posed by the ballot, seeking authorisation of particular forms of proposed industrial action. The results of the ballot in respect of each of the forms of industrial action are set out in the declaration, but in summary, a majority of employees included on the roll of voters participated in the vote, and a majority of valid votes case approved each of the forms of industrial action proposed.

[5] Section 459 of the Act relevantly provides that industrial action by employees is authorised by a protected action ballot if the action commences during the 30-day period starting on the day of the declaration of the results of the ballot or, if the period has been extended by the Commission, during the extended period.

[6] None of the kinds of industrial action authorised by the ballot has been engaged in by employees during the 30-day period. The TWU’s application seeks an extension of that period.

[7] The company opposed the grant of an extension. It contended that the company and the TWU had agreed on the terms of a new enterprise agreement, and that voting on the agreement had commenced on 21 October 2019 and was due to conclude on 25 October 2019. The company submitted that the TWU supports the proposed agreement and that the bargaining process has ended.

[8] The TWU contended that, although it has recommended to its members that they vote in favour of the proposed agreement, the outcome of the vote remains unknown and in the event the agreement were to be voted down, the union would consult with members and seek further bargaining meetings with the company. The TWU submitted that its application under s 459 sought to preserve the possibility of taking protected industrial action in support of such further negotiations, should that be necessary, without having to make a fresh application to the Commission for a protected action ballot order.

[9] Section 459(3) provides the Commission with a discretion to extend the period within which protected industrial action must commence by up to 30 days. The discretion is exercisable if the applicant for a protected action ballot order applies for the period to be extended, and that period has not previously been extended. In this matter the TWU was the applicant for the protected action ballot order. It has made a valid application for an extension of the 30-day period under s 459. The period has not previously been extended. The jurisdictional prerequisites for extending the 30-day period are therefore satisfied in this case.

[10] Section 459(3) contains two discretionary elements. The first concerns the question of whether to extend the 30-day period, and the second is to determine the period of the extension. If the Commission is minded to extend the period, the latter discretion is confined so that the period of extension can be no greater than 30 days.

[11] The discretion conferred on the Commission under s 459(3) is to be exercised having regard to the evident statutory purpose of the provision, read in the context of Part 3-3 and the Act as a whole, and taking into account the circumstances of the relevant application. I note that the object of Division 8 of Part 3-3, in which s 459(3) appears, is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement (s 436).

[12] I have determined that it is appropriate to exercise my discretion to extend the 30-day period in this case. First, the conduct of the parties is a relevant discretionary consideration. It is not disputed that the TWU has been trying to reach agreement with the company. Negotiations have produced an in-principle agreement that is being put to a vote. The company submits, in effect, that the union is not presently trying to reach agreement, because agreement has already been reached and bargaining is over. However, an agreement is not ‘made’ for the purpose of s 182 of the Act until employees have voted to approve it. And as the union explained, while it supports the agreement, if it is voted down, it will seek to negotiate further.

[13] Secondly, if the extension were not granted, and the agreement were voted down, the union would need to make a fresh application for a protected action ballot order in order to be able to take protected action. I have no reason to doubt that, should the TWU apply for a further protected action ballot order, the application would be granted. In such circumstances, and absent any countervailing factor, to put the TWU to the task of seeking a fresh protected action ballot order would be incompatible with the object of Division 8 of Part 3-3.

[14] Thirdly, I cannot identify any consideration that tells against the exercise of the discretion to extend the 30-day period. For example, there is no suggestion that the composition of the workforce has changed in any significant way.

[15] I take into account the cost, inconvenience and delay that would be associated with a further protected action ballot application being made in the event the present application were declined, and the fact that there is no evidence of any change in the circumstances that would be relevant to the consideration of a further ballot application. These matters also weigh in favour of the exercise of my discretion to grant an extension.

[16] I consider it appropriate to extend the 30-day period in s 459(1)(d)(i). That then brings me to the question of the period of the extension. No submissions were made about the length of the extension. In the circumstances I consider that it is appropriate to extend the period by 30 days.

[17] For these reasons, I grant the TWU’s application to extend the 30-day period under s 459(3). That period is extended by a further 30 days.

[18] An order has separately been issued in PR713605.

DEPUTY PRESIDENT

Appearances:

J Cooney for the TWU

M Baird for Donric Pty Ltd

Hearing details:

2019

Melbourne

October 22

Printed by authority of the Commonwealth Government Printer

<PR713604>