United Workers' Union v Australasian Food Group T/A Peter's Ice Cream

[2023] FWC 2804

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

United Workers' Union
v

Australasian Food Group T/A Peter's Ice Cream

(B2023/1159)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 25 OCTOBER 2023

Application to extend the 30 day period in relation to B2023/934

This matter concerns the declaration of the result of a protected action ballot (PR765890) held in matter B2023/934 and declared on 28 September 2023.

The United Workers’ Union (UWU or the Applicant) 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 UWU contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

Australasian Food Group Pty Ltd (the Respondent) has advised the Commission it has no objection to this 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 UWU members employed by Australasian Food Group Pty Ltd be extended by a further 30 days.

This order will operate on and from 25 October 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has been asked to consider an application by the United Workers' Union (UWU) to extend the period in which industrial action can be authorised by a protected action ballot. This decision pertains to matter B2023/1159 and follows the declaration of the result of a ballot (PR765890) held in matter B2023/934, which was declared on 28 September 2023. The application seeks an extension of the 30-day period stipulated under section 459(3) of the Fair Work Act 2009. The Australasian Food Group Pty Ltd (the Respondent) has indicated that it has no objections to the application.

The central legal issue before the Commission was whether the requirements set out in section 459(3) of the Fair Work Act 2009 had been satisfied, thereby justifying an extension of the 30-day period. The UWU argued that the conditions for an extension were met, including that the period had not been previously extended. Section 459(3) of the Act allows for such an extension if an applicant applies for it and the period has not been previously extended. The Respondent did not contest the application. The Commission had to determine whether the application complied with the statutory criteria and, if so, grant the requested extension.

In making its decision, the Commission considered the provisions of section 459(3) of the Fair Work Act 2009 and the application submitted by the UWU. The Commission noted that the UWU had met all the necessary conditions for an extension, and the Respondent had no objections. Consequently, the Commission concluded that the application should be granted. The Deputy President of the Commission ordered that the 30-day period for the commencement of protected industrial action for eligible UWU members employed by Australasian Food Group Pty Ltd be extended by a further 30 days, effective from 25 October 2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established