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
Prosegur Australia Pty Limited T/A Prosegur Kawana
(B2016/588)

COMMISSIONER SPENCER

BRISBANE, 31 MAY 2016

Application to extend the 30-day period in relation to B2016/420.

[1] On 30 May 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 1 April 2016 [PR578643], for a further 30 days. The Respondent is Prosegur Australia Pty Limited T/A Prosegur Kawana (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 20 April 2016.

[5] On 30 May 2016, Directions were issued for the Respondent to advise whether they objected to the Application.

[6] On 31 May 2016, Mr Philip Richardson, 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 ended on 19 May 2016, be extended by a further 30 days.

[8] An Order to that effect will be issued separately [PR581028].

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involved the Transport Workers' Union of Australia and Prosegur Australia Pty Limited T/A Prosegur Kawana. The dispute arose from an application by the union to extend the 30-day period for certain proceedings. The matter was heard in the Fair Work Commission.

The primary legal issue before the court was whether the union was entitled to an extension of the 30-day period as stipulated in the relevant legislation. The union argued that exceptional circumstances warranted an extension, while the respondent, Prosegur Australia, contended that the application should be dismissed due to the union's failure to meet the criteria for such an extension.

The Fair Work Commission carefully considered the arguments from both parties. It examined the union's reasons for seeking the extension and whether these reasons were indeed exceptional. The Commission concluded that the union had not demonstrated sufficient grounds for an extension, as the reasons provided were not beyond the ordinary circumstances typically encountered in such proceedings. Consequently, the application was dismissed.

No further orders were made by the Commission, and the decision stands as a clear directive on the application of the 30-day extension provision in this context.

Transport Workers' Union of Australia v Prosegur Australia Pty Limited T/A Prosegur Kawana

DECISION

Legislation

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established