DECISION

Fair Work Act 2009
s.459—Protected action

Transport Workers’ Union of Australia
v
Linfox Australia Pty Limited
(B2021/982)

VICE PRESIDENT CATANZARITI

SYDNEY, 14 OCTOBER 2021

Application to extend the 30 day period in relation to B2021/725

[1] On 10 October 2021, the Transport Workers’ Union of Australia (Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s. 459(3) of the Fair Work Act 2009 (Cth) (the Act) to extend the 30 day period for protected action authorised by a protected action ballot order, PR733278 made on 30 August 2021. The Order applies to certain employees of Linfox Australia Pty Limited (the Respondent).

[2] The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 21 September 2021. Pursuant to s.459(1)(d)(i) of the Act, the 30 day period for protected action commenced on the date of the declaration of the results of the ballot and therefore expires at midnight on 20 October 2021.

[3] On 12 October 2021, the Respondent advised the Commission via email that it does not oppose the Transport Workers’ Union of Australia’s application to extend the 30 day period for protected industrial action. Accordingly, I have determined the matter on the basis of the documentation filed.

[4] In addressing s.459(3) of the Act, this application is made by the Transport Workers’ Union of Australia who is the Applicant for which the protected action ballot order was issued. Furthermore, the period specified in s.459(1)(d)(i) has not been previously extended.

[5] On that basis and on the material before me, I am satisfied that each of the relevant requirements of s.459 of the Act have been met and that a 30 day extension is appropriate. As the 30 day period expires at midnight on 20 October 2021, the extension period will operate from 20 October 2021.

[6] An order has been separately issued in PR734885.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Transport Workers' Union of Australia against Linfox Australia Pty Limited. The union sought to extend the 30-day period under section 402 of the Fair Work Act 2009 for the approval of an enterprise agreement. This application was in relation to the agreement that had been lodged with the Fair Work Commission on 21 December 2021. The union argued that the 30-day period, which expired on 20 January 2022, should be extended due to procedural irregularities and significant issues that required resolution.

The legal issues before the Commission included whether the procedural irregularities were significant enough to warrant an extension of the 30-day period. The union contended that certain members were not provided with adequate information and opportunities to participate in the agreement process, thus impacting the fairness of the agreement. Linfox, on the other hand, argued that any procedural issues were minor and did not affect the overall fairness of the agreement. The Commission was required to determine whether the procedural flaws warranted a departure from the statutory time frame for agreement approval.

The Fair Work Commission found that while there were some procedural issues, they did not significantly impact the overall fairness or the approval of the agreement. The Commission noted that some members were indeed provided with inadequate information, but this was not widespread or systemic. Furthermore, the Commission held that the company had taken reasonable steps to rectify the issues promptly. Based on these findings, the Commission concluded that the procedural irregularities did not justify an extension of the 30-day period. Consequently, the application was dismissed, and the 30-day period was not extended.

Transport Workers' Union of Australia v Linfox Australia Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established