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

[2023] FWC 2772

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

Bega Dairy And Drinks Pty Ltd T/A Bega

(B2023/1145)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 23 OCTOBER 2023

Application to extend the 30 day period in relation to B2023/816

This matter concerns the declaration of the result of a protected action ballot (PR765006) held in matter B2023/816 and declared on 21 September 2023.

The United Workers’ Union (UWU) 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.

The Respondent has not advised the Commission of any 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 Dairy And Drinks Pty Ltd T/A Bega be extended by a further 30 days.

This order will operate on and from 23 October 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission, presided over by Deputy President Hampton, was presented with an application by the United Workers' Union to extend the 30-day period during which industrial action could be undertaken following a protected action ballot. The Union sought an extension under section 459(3) of the Fair Work Act 2009, following the declaration of the result of the ballot held in relation to matter B2023/816, which was declared on 21 September 2023. The Union argued that the statutory requirements for such an extension had been met, and Bega Dairy and Drinks Pty Ltd T/A Bega, the respondent, did not object to the application. The court was required to determine whether the application complied with the legislative criteria for an extension and, if so, whether the extension should be granted.

The legal issues before the court were whether the United Workers' Union's application met the statutory requirements set out in section 459(3) of the Fair Work Act 2009 for an extension of the 30-day period for industrial action. These requirements included whether an application had been made by the applicant and whether the period had not previously been extended. The Union had made the application and the 30-day period had not been extended previously. Given that the respondent did not object to the application, the court needed to consider whether it was appropriate to grant the extension.

The Deputy President found that the Union's application met the requirements of section 459(3) of the Act, and thus the application should be granted. The court was satisfied that the Union had complied with the statutory requirements and that the absence of objection from the respondent did not provide a reason to withhold the extension. Consequently, the Deputy President ordered that the 30-day period for the commencement of protected industrial action by eligible UWU members employed by Bega Dairy and Drinks Pty Ltd T/A Bega be extended by a further 30 days. The order was effective from 23 October 2023.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established