Transport Workers' Union of Australia v Virgin Australia Airlines Pty Ltd T/A Virgin Australia Airlines

[2024] FWC 23

FAIR WORK COMMISSION

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

Virgin Australia Airlines Pty Ltd T/A Virgin Australia Airlines

(B2024/4)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 4 JANUARY 2024

Application to extend the 30-day period in relation to B2023/1242

This matter concerns the declaration of the result of a protected action ballot (PR768321) held in matter B2023/1242 and declared 4 December 2023.

The Transport Workers’ Union of Australia (TWU) has made an application pursuant to s.459(3) of the Fair Work Act 2009 (Act) to extend the 30 day period in which industrial action is authorised by the relevant protected action ballot.

Section 459(3) of the Act provides as follows:

“(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.”

The application made by the TWU contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

Virgin Australia Airlines Pty Limited T/A Virgin Australia Airlines (Virgin) has advised the Commission that it neither consents nor objects to the application.

I am satisfied that the relevant requirements of the Act have been met and that the application should be granted.

Accordingly, pursuant to section 459(3) of the Act, I order that the 30 day period for the commencement of protected industrial action for eligible TWU members employed by Virgin be extended by a further 30 days.

This order will operate on and from 4 January 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia (TWU) has applied to the Fair Work Commission (FWC) for an extension of the 30-day period within which industrial action can be taken by its members, as authorised by a protected action ballot. The application pertains to the extension of the period specified in section 459(3) of the Fair Work Act 2009, in relation to a ballot (PR768321) held in matter B2023/1242 and declared on 4 December 2023. Virgin Australia Airlines Pty Limited T/A Virgin Australia Airlines (Virgin) has neither consented to nor objected against the application.

The legal issues before the FWC included whether the application by the TWU met the statutory requirements for extending the 30-day period, and if the extension should be granted. Specifically, the court had to consider whether the application was made by an applicant for the protected action ballot order, and if the period had not already been extended. The FWC found that the TWU's application met all the statutory criteria and, therefore, was satisfied that the application should be granted.

In reaching its decision, the FWC noted that the application was made by the TWU, who were the applicants for the protected action ballot order, and that the 30-day period had not been previously extended. Given these findings, the FWC concluded that the application should be approved and ordered that the 30-day period for the commencement of protected industrial action for eligible TWU members employed by Virgin be extended by a further 30 days, effective from 4 January 2024.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established