Transport Workers' Union of Australia v Surfside Buslines Pty Ltd

[2011] FWA 6607

[2011] FWA 6607

FAIR WORK AUSTRALIA

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
Surfside Buslines Pty Ltd
(B2011/3439)

COMMISSIONER ASBURY BRISBANE, 27 SEPTEMBER 2011

Application to extend the 30 day protected action period in relation to matter B2011/164.

Background

[1] On 19 September 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 protected action ballot. The application sought an order in relation to employees of Surfside Buslines Pty Ltd whose terms and conditions of employment are covered, will be covered by a new proposed agreement.

[2] The application was listed for Directions/Hearing on 23 September 2011. On 22 September 2011 an email was received from Mr Ian MacDonald, National Industrial Relations Manager, of the Australian Public Transport Industrial Association in the following terms:

“Subject: s.459 Application by the Transport Workers Union, B2011/3439

Dear Commissioner Asbury

We represent our member, Surfside Buslines Pty Ltd who are the Respondents in the proceedings identified above. We are further aware that the application is listed for Directions/Hearing on Friday 23 September 2011. Please be advised that our member does not propose to appear or to enter any evidence or submissions with respect to this application.”

[3] The TWU filed an outline of submissions and a witness statement. 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 Applicant has not previously applied for the 30 day period to be extended.

[4] At the conclusion of the hearing on 23 September 2011, I indicated that I would make an order to extend the 30 day period, to commence from the day on which it expired being 15 September 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

[5] A protected action ballot order was originally made by Senior Deputy President Harrison on 25 July 2011. The ballot was conducted by the Australian Electoral Commission and Declaration of Results was issued on 16 August 2011. By virtue of s.459(1)(d) of the Act, industrial action was authorised by that ballot if it commenced on 15 September 2011.

[6] Evidence was given by Mr Robert Giddens, Senior Organiser with the Queensland Branch of the TWU to the effect that TWU members engaged in one of the forms of industrial action authorised by Ballot - a 24 hour stoppage - on 1 September 2011. Thereafter, TWU members refrained from engaging in further industrial action to allow Surfside Buslines Pty Ltd an opportunity to put its proposed Agreement to employees for ballot, notwithstanding that the TWU and its members did not agree with the terms of the Agreement proposed by the Company.

[7] According to Mr Giddens, the ballot of employees conducted by the Company was counted on 19 September 2011, and the outcome was that the Agreement was not approved by a majority of employees. TWU Delegates and members now wish to proceed with industrial action in support of an improved offer from Surfside Buslines Pty Ltd, and accordingly an extension of the 30 day period in which to take industrial action is sought, in respect of types of industrial action authorised by the ballot and not taken within the required period. The TWU and its members have been and are genuinely trying to reach agreement with Surfside Buslines Pty Ltd. Mr Giddens’ evidence was not contested and I accept it.

Legislation

[8] 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.

[9] 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

[10] Section 459(1) establishes a 30 day period where the right to take industrial action can be described on the basis that employees are required to “use it or lose it”. 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

[11] 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

[12] 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.

[13] 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 29 day extension from that date. 8

Conclusions

[14] In the present case, there is uncontested evidence that TWU members refrained from taking all but one of the forms of industrial action authorised by the ballot, to allow the employer an opportunity to put its proposed agreement directly to employees, notwithstanding that the TWU did not agree with that approach. The fact that all forms of industrial action authorised by the ballot have not been taken should not weigh against the exercise of the discretion.

[15] Further, some of the forms of industrial action authorised by the ballot and not taken in the first 30 day period are for lesser periods than 24 hours. To refuse the extension would require that members of the TWU take industrial action only in the form of 24 hour stoppages, if that action is to be protected.

[16] 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 29 days from the 15 September 2011, the date upon which the first 30 day period expired.

[17] An Order reflecting this decision will issue and the extension period will operate to 14 October 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.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR514988>