Transport Workers' Union of Australia v K&S Freighters Pty Ltd T/A K&S Energy

[2024] FWC 3308

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

K&S Freighters Pty Ltd T/A K&S Energy

(B2024/1558)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 NOVEMBER 2024

Application to extend the 30 day period in relation to B2024/1384.

This matter concerns the declaration of the result of a protected action ballot PR780514 held in matter B2024/1384 and declared on 6 November 2024.

The Transport Workers' Union of Australia has made an application pursuant to s.459(3) of the Fair Work Act 2009 (Act) to extend the 30 day period in which industrial action is authorised by the relevant protected action ballot.

Section 459(3) of the Act provides as follows:

“(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.”

The application contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

K&S Freighters Pty Ltd trading as K&S Energy has not advised the Commission of any objection to this application.

I am satisfied that the relevant requirements of the Act have been met and that the application should be granted.

Accordingly, pursuant to section 459(3) of the Act, I order that the 30 day period for the commencement of protected industrial action for eligible employees who were subject to the ballot and are employed by the Employer be extended by a further 30 days.

This order will operate on and from 28 November 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has addressed an application by the Transport Workers' Union of Australia to extend the 30-day period in which industrial action can be authorised by a protected action ballot. The matter pertains to ballot PR780514, which was declared on 6 November 2024, under reference B2024/1384. The employer, K&S Freighters Pty Ltd trading as K&S Energy, has not raised any objections to the application. The legal issues before the Commission involved determining whether the application met the statutory requirements set out in section 459(3) of the Fair Work Act 2009. This section permits the Commission to extend the 30-day period if the applicant for the protected action ballot order requests an extension and the period has not already been extended.

The Transport Workers' Union of Australia argued that the application satisfied the conditions stipulated in section 459(3) of the Fair Work Act 2009. Specifically, the union submitted that it had applied for the extension and that the period had not previously been extended. Given that K&S Freighters Pty Ltd did not oppose the application, the Deputy President found that all statutory requirements had been fulfilled. Consequently, the Commission determined that the application should be granted, resulting in an extension of the 30-day period by a further 30 days. The Deputy President concluded that the period for the commencement of protected industrial action for eligible employees subject to the ballot and employed by K&S Freighters Pty Ltd should be extended accordingly.

In light of the above, the Deputy President issued an order pursuant to section 459(3) of the Fair Work Act 2009. The order extends the 30-day period for the commencement of protected industrial action for eligible employees by a further 30 days. This extension is effective from 28 November 2024, the date of the order. The decision reflects the Commission's consideration of the application and its determination that the statutory conditions for an extension were met. The order will govern the conduct of industrial action by the employees involved in the ballot and their employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established