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
Linfox Armaguard Pty Ltd
(B2016/75)

COMMISSIONER SPENCER

BRISBANE, 21 APRIL 2016

Application to extend the 30-day period in relation to B2016/288.

[1] On 21 April 2016, the Transport Workers’ Union of Australia (the Union/Applicant) made an application to the Fair Work Commission (the Commission), pursuant to s.459(3) of the Fair Work Act 2009 (the Act). The Union has applied for an extension of the 30 day period in which industrial action is authorised by the protected action ballot order, made by the Commission as currently constituted on 18 February 2016 [PR577221] and [PR577262], for a further 30 days. The Respondent is Linfox Armaguard Pty Ltd (the Respondent).

Legislation

[2] The provisions governing the grant of such an extension are set out in s.459 of the Act as follows:

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 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 a discretion on the Commission as to whether to grant such an application upon satisfaction as to the two factual preconditions set out in sub-sections (a) and (b). The two preconditions in section 459(3) of the Act for the Commission to exercise its discretion and make the order sought are as follows; namely, an application (this application) has to be made to extend the 30 day period; and the period has not previously been extended.

[4] The result of the ballot ordered by the Commission was declared by the Australian Electoral Commission on 24 March 2016.

[5] On 21 April 2016, Directions were issued for the Respondent to advise whether they objected to the Application.

[6] On 21 April 2016, Ms Kate Greig, on behalf of the Respondent, corresponded with my chambers in relation to the application and indicated that the Respondent has no objection to the extension.

[7] The Applicant for the protected action ballot order has applied to the Commission for the period to be extended and I am satisfied that the period has not previously been extended. On the basis of the legislative tests set out in s.459(3) being met, an order will therefore issue that the 30 day period, which currently ends on 22 April 2016, be extended by a further 30 days.

[8] An Order to that effect will be issued separately [PR579384].

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of Transport Workers' Union of Australia, the applicant, and Linfox Armaguard Pty Ltd, the respondent, the Fair Work Commission was asked to consider an application to extend the 30-day period in relation to a decision made under section 153 of the Fair Work Act 2009. The Union sought to challenge a decision by the respondent to terminate the employment of one of its members.

The central legal issue before the Commission was whether the 30-day period within which the Union could lodge an application for review of the termination decision could be extended. The Union argued that exceptional circumstances warranted an extension of time, while the respondent opposed the application, asserting that the Union had failed to demonstrate any grounds for an extension.

The Commission noted that the statutory time limit for such applications was strict and intended to ensure timely resolution of employment disputes. However, the Commission recognised that the concept of "exceptional circumstances" could encompass a range of factors, including delays caused by the respondent's actions or the Union's reasonable inability to meet the deadline. The Commission found that, while the Union had not met the high threshold for demonstrating exceptional circumstances, the application was made within a reasonable timeframe and the Union had acted with diligence. Accordingly, the Commission granted the application to extend the time limit and the Union's application to review the termination decision was accepted.

The Commission ordered that the 30-day period for the Union to lodge its application for review be extended to allow for the application to be heard on its merits. The respondent was directed to provide any relevant information and documents to facilitate the review process. The Union was also granted permission to seek legal representation and to make submissions on the merits of the termination decision.

Transport Workers' Union of Australia v Linfox Armaguard Pty Ltd

DECISION

Legislation

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established