Transport Workers' Union of Australia v SITA Australia Pty Ltd
[2011] FWA 7408
•28 OCTOBER 2011
[2011] FWA 7408 |
|
REASONS FOR 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 SITA Australia Pty Ltd
(B2011/3759)
COMMISSIONER ASBURY | BRISBANE, 28 OCTOBER 2011 |
Application to extend the 30 day protected action period in relation to matter B2011/3439.
Background
[1] On 21 October 2011, Transport Workers’ Union of Australia (TWU) made an application under s.459 of the Fair Work Act 2009 (the Act) for an extension to the 30 day period in which industrial action is authorised by a protected action ballot. The application sought an order in relation to employees of SITA Australia Pty Ltd (SITA) whose terms and conditions of employment will be covered by a proposed agreement.
[2] The application was listed for Directions/Hearing on 26 October 2011, at 2.30pm. On 26 October 2011 at 1.30pm an email was received from Mr Jon Dyster, General Manager Human Resources, of the SITA in the following terms:
“Subject: Re: B2011/3759
Dear Commissioner Asbury
As committed to the Union in our discussions on 10 October 2011 SITA does not oppose the extension to the 30 day period in which protected action is authorised by the PAB declared 28/9/11. Notwithstanding this commitment to the Union regarding the extension of the 30 day period, it should be noted that we do not accept that the Outline of Submissions and the Witness Statement of Craig Williams provided by the Applicant represent the agreed facts in this matter.
I am available by telephone if further information is required.”
[3] On 26 October 2011 at 1.51pm a response was forwarded to Mr Dyster in the following terms:
“Dear Mr Dyster,
I refer to your email of 26 October 2011 received at 1.30pm. I understand your submission that the Outline of Submissions and the Witness Statement of Mr Williams filed by the TWU in relation to this matter does not represent agreed facts in relation to this matter.
However, in the absence of evidence from SITA to the contrary, those facts may be accepted on the basis that they are not contested and relied on to determine the TWU application. If you wish to contest those facts you may do so by attending the hearing scheduled for 2.30pm this afternoon.”
[4] In a subsequent discussion with my Associate, Mr Dyster stated that SITA did not contest the present application, but reserved its right to challenge the factual matters set out in the TWU’s material should they be asserted in any other proceedings.
[5] The abovementioned correspondence was copied to the TWU, and the TWU was informed during the hearing of the application, about the correspondence and the terms of the discussion with Mr Dyster.
[6] The TWU filed an outline of submissions and a witness statement of Mr Craig Williams, Senior Organiser with the Queensland Branch of the TWU. Mr Williams’ evidence which was not contested in these proceedings, went to the progress of negotiations. Mr Williams asserted that the TWU had at all times been genuinely trying to reach an agreement with SITA, and that the TWU had acted in good faith by withdrawing a notification of industrial action during the 30 day period, after the date of declaration of the ballot, to enable negotiations to be progressed. In response SITA had agreed not to oppose any application to extend that 30 day period.
[7] It was submitted that in determining the application, FWA should exercise discretion under s.459(3) of the Act to extend the 30 day period and that the TWU has not previously applied for the 30 day period to be extended.
[8] A protected action ballot order was originally made by Fair Work Australia on 8 September 2011. The ballot was conducted by the Australian Electoral Commission and Declaration of Results was issued on 28 September 2011. By virtue of s.459(1)(d) of the Act, industrial action was authorised by that ballot if it commenced on or before 27 October 2011.
[9] At the conclusion of the hearing on 26 October 2011, I indicated that I would make an order to extend the 30 day period, to commence from the day on which it expires being 27 October 2011 and would issue written reasons for that decision setting out the basis for exercising the discretion and the length of the extension which would be ordered. This decision sets out those reasons.
Legislation
[10] Section 459(1) deals with circumstances in which industrial actions is authorised by a protected action ballot and provides 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 FWA has extended that period under subsection (3)—during the extended period.
Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.
[11] Section 459(3) provides that FWA may extend the 30 day period as in the following terms:
(3) FWA 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 FWA for the period to be extended; and
(b) the period has not previously been extended.
Consideration
[12] Section 459(1) provides that industrial action commencing during the 30 day period starting on the date of the declaration of a protected action ballot, is authorised by that ballot. Typically, protected action ballots authorise industrial action in various specified forms. The effect of s.459(1) is that a form of industrial action not commenced or taken during that 30 day period, ceases to be authorised by the relevant ballot. Section 459(3) gives FWA a discretionary power to extend the 30 day period. That power may be exercised in circumstances where the application for an extension is made either before or after the expiration of the original 30 day period. 1
[13] It has been held that the discretion should be exercised in situations where it can be demonstrated that bargaining is proceeding and an extension is consistent with the objects of the Act as specified in s.436. 2 The discretion is wide and is unconditioned by a statutory direction.3 Parliament has provided for a one off extension without the need for a further ballot, and cogent reasons are required to refuse an application for an extension, such as a change in disposition or composition of employees.4
[14] Circumstances in which an extension has been granted are that parties are bargaining in good faith; there is not a lengthy delay between the expiry of the original 30 day period and the application for an extension being made; 5 parties have participated in conciliation during the original 30 day period;6 or have refrained from taking industrial action and bargained constructively.7 It is also the case that if an overly restrictive view is taken of the circumstances in which the discretion will be exercised, the result will be that industrial action may be taken in a number of forms during the initial 30 day period, simply to preserve the right to take it after that period has expired. This outcome is not consistent with the objects in s.436 of the Act of establishing a fair and simple process.
[15] In my view the term “extension” implicitly means that the reference point for the extension is the date upon which the first 30 day period expired, and the time for the extension runs from no later than that date, so that if a second 30 day extension is granted it includes the last day of the first 30 day period, and is a 30 day extension commencing on and including that date. 8
Conclusions
[16] In the present case, there is uncontested evidence that TWU members refrained from taking industrial action authorised by the ballot, to allow further negotiations to take place. Further, SITA does not contest the extension and has indicated that it agreed not to do so on the basis of the withdrawal of a notification by the TWU in relation to industrial action during the first 30 day period. In those circumstances, the fact that industrial action authorised by the ballot has not been taken should not weigh against the exercise of the discretion.
[17] There is no evidence to suggest that the TWU and its members are not bargaining in good faith or that the TWU and its members are not genuinely trying to reach agreement with the employer. Accordingly, the application for an extension is granted. In the absence of any evidence or submissions to the contrary, I have also decided that the extension will operate for a period of 30 days commencing on 27 October 2011, the date upon which the first 30 day period expired.
[18] An Order reflecting this decision will issue and the extension period will operate to 25 November 2011.
COMMISSIONER
1 National Union of Workers v Symbion Pharmacy Services Pty Ltd [2009] FWA 1284 per O’Callaghan SDP at [11]; AMACSU and Others v Flinders Operating Services Pty Ltd T/As Alinta Energy[2011] FWA 4617 per Bartel DP at [10].
2 National Union of Workers v Symbion Pharmacy Services Pty Ltd [2009] FWA 1284 per O’Callaghan SDP at [11]
3 Re: Transport Workers’ Union of Australia [2011] FWA 1097 per Lewin C.
4 MUA v DP World Adelaide Pty Ltd [2010] FWA 7638 per Hampton C.
5 National Union of Workers v Symbion Pharmacy Services Pty Ltd op. cit.
6 AMACSU and Others v Flinders Operating Services Pty Ltd T/As Alinta Energy op. cit.
7 MUA v DP World Adelaide Pty Ltd op. cit.
8 AMACSU and Others v Flinders Operating Services Pty Ltd T/as Alinta Energy op. cit.
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