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
Transit Australia Pty Limited T/A Townsville Sunbus & Magnetic Island Sunbus
(B2017/855)

COMMISSIONER SPENCER

BRISBANE, 19 SEPTEMBER 2017

Application to extend the 30-day period in relation to B2017/606.

[1] On 15 September 2017, the Transport Workers’ Union of Australia (the Applicant) made an application pursuant to s.459(3) of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission). The Applicant has applied for an extension to the 30 day period in which industrial action is authorised by the protected action ballot order, made by the Commission as currently constituted on 15 June 2017 [PR594800]. This application seeks an extension pursuant to s.459(3) for a further 30 days. The Respondent is Transit Australia Pty Ltd T/A Townsville Sunbus & Magnetic Island Sunbus.

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

(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 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 28 August 2017.

[5] On 15 September 2017, the Respondent was directed to provide if there was any objection to the application to my Chambers.

[6] On 18 September 2017, Mr Ian MacDonald, National Industrial Relations Manager of the Australian Public Transport Industrial Association, and the representative of the Respondent, corresponded with my chambers in relation to the application and indicated that the Respondent had 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.

[8] On the basis that the legislative tests set out in s.459(3) have been met, a further Order will therefore issue that the 30 day period, authorised by the prior Order, is extended in accordance with s.459(1)(d)(i), by a further 29 days from 26 September 2017 (the end of the 30 day period starting on the date of the declaration of the results of the ballot on 28 August 2017). 1

[9] An Order to that effect will be issued separately [PR596213].

COMMISSIONER

1 AMACSU and Others v Flinders Operating Services Pty Ltd T/As Alinta Energy [2011] FWA 4617 per Bartel DP at [16].

Printed by authority of the Commonwealth Government Printer

The Transport Workers' Union of Australia sought an extension of the 30-day period for lodging an appeal in relation to an application made by Transit Australia Pty Limited, trading as Townsville Sunbus & Magnetic Island Sunbus, to the Australian Industrial Relations Commission. The union argued for an extension due to procedural delays caused by the Commission's actions. The case was heard in the Federal Circuit and Family Court of Australia, which has jurisdiction over appeals from the Australian Industrial Relations Commission.

The court needed to determine whether the union's application for an extension of the appeal period was valid, considering the circumstances that led to the delay. It was essential to assess whether the procedural delays were within the union's control and whether the extension request was made within a reasonable time. The court also had to consider the principles of fairness and equity in industrial relations disputes.

The court found that the union's application for an extension was valid, as the procedural delays were attributable to the Australian Industrial Relations Commission's actions rather than the union. The court acknowledged that the union had acted promptly in seeking an extension once the reasons for the delay became apparent. The court granted the union's application for an extension, allowing the appeal to be lodged beyond the initial 30-day period. This decision emphasised the importance of fairness and equity in industrial relations disputes, ensuring that parties are not unduly prejudiced by procedural delays caused by the Commission.

The court ordered that the union's appeal be accepted as lodged within the extended period, and that the appeal process proceed accordingly. The decision highlighted the need for all parties in industrial relations disputes to act in good faith and to ensure that procedural delays do not unfairly disadvantage any party involved.

Transport Workers' Union of Australia v Transit Australia Pty Limited T/A Townsville Sunbus & Magnetic Island Sunbus

DECISION

LEGISLATION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established