United Workers' Union v Bega Dairy and Drinks Pty Ltd T/A Bega

[2023] FWC 2649

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

Bega Dairy And Drinks Pty Ltd T/A Bega

(B2023/1080)

DEPUTY PRESIDENT HAMPTON

MELBOURNE, 12 OCTOBER 2023

Application to extend the 30 day period in relation to B2023/805

This matter concerns the declaration of the result of a protected action ballot (PR764933) held in matter B2023/805 and declared on 13 September 2023.

The United Workers’ Union (UWU or 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.

Bega Dairy and Drinks Pty Ltd trading as Bega (Bega) 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 Bega be extended by a further 30 days.

This order will operate on and from 12 October 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was asked to decide on an application by the United Workers’ Union (UWU) to extend the period during which industrial action is authorised by a protected action ballot. The application was in relation to a ballot held under matter B2023/805, which was declared on 13 September 2023. The union sought an extension under section 459(3) of the Fair Work Act 2009, which allows the FWC to extend the 30-day period in which industrial action can be taken if the union applies for an extension and if the period has not already been extended. Bega Dairy and Drinks Pty Ltd trading as Bega, the employer, did not object to the application.

The central legal issue was whether the UWU's application met the statutory requirements for an extension under section 459(3) of the Fair Work Act. This required the FWC to consider whether the union had applied for an extension within the prescribed timeframe and whether the 30-day period had not previously been extended. The Deputy President of the FWC, Hampton, found that the union's application satisfied the statutory conditions for an extension. The Deputy President concluded that the application should be granted and the 30-day period extended by a further 30 days.

The FWC granted the union's application and extended the period for the commencement of protected industrial action for eligible UWU members employed by Bega by a further 30 days. The order took effect from 12 October 2023. This decision allowed the union more time to potentially pursue industrial action if necessary.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established