United Workers' Union v Harvey Fresh (1994) Ltd

[2022] FWC 2564

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

United Workers’ Union
v

Harvey Fresh (1994) Ltd

(B2022/1408)

VICE PRESIDENT CATANZARITI

SYDNEY, 23 SEPTEMBER 2022

Application to extend the 30 day period in relation to B2022/1164

On 16 September 2022, the United Workers’ Union (Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s. 459(3) of the Fair Work Act 2009 (Cth) (the Act) to extend the 30 day period for protected action authorised by a protected action ballot order, PR744483 made on 3 August 2022. The Order applies to certain employees of Harvey Fresh (1994) Ltd (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 18 August 2022. Pursuant to s. 459(1)(d)(i) of the Act, the 30 day period for protected action commenced on the date of the declaration of the results of the ballot and therefore expired at midnight on 16 September 2022.

On 19 September 2022, the Respondent advised the Commission via email that it does not oppose the United Workers’ Union’s application to extend the 30 day period for protected industrial action. Accordingly, I have determined the matter on the basis of the documentation filed.

In addressing s.459(3) of the Act, this application is made by the United Workers’ Union who is the Applicant for which the protected action ballot order was issued. Furthermore, the period specified in s.459(1)(d)(i) has not been previously extended.

On that basis and on the material before me, I am satisfied that each of the relevant requirements of s.459 of the Act have been met and that a 30 day extension is appropriate. As the 30 day period expired at midnight on 16 September 2022, the extension period will operate from 16 September 2022.

An order has been separately issued in PR746156.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of United Workers' Union v Harvey Fresh (1994) Ltd, the Fair Work Commission was presented with an application to extend the period for protected industrial action under section 459 of the Fair Work Act 2009. The United Workers' Union, the applicant, sought an extension of the 30-day period that had been authorised by a protected action ballot order, PR744483, which applied to certain employees of Harvey Fresh (1994) Ltd, the respondent. The 30-day period began on the date of the ballot results declaration and expired on 16 September 2022. The respondent did not oppose the application.

The legal issues before the Commission involved the interpretation and application of section 459 of the Fair Work Act 2009, which governs the extension of the period for protected industrial action. Specifically, the Commission had to determine if the requirements of section 459(3) were satisfied to allow for the extension of the 30-day period. The Union argued that an extension was warranted, and the respondent did not oppose the application. The Commission considered the statutory provisions, the facts of the case, and the absence of opposition from the respondent in reaching its decision.

After reviewing the relevant provisions of the Act and the circumstances of the case, the Vice President concluded that the requirements of section 459 had been met, and an extension was appropriate. The Commission noted that the 30-day period had expired at midnight on 16 September 2022 and that the extension would operate from that date. The Vice President issued an order in PR746156 to effect the extension.

The Fair Work Commission granted the United Workers' Union's application to extend the 30-day period for protected industrial action. The extension was effective from 16 September 2022. The Commission's decision was based on the provisions of section 459 of the Fair Work Act 2009 and the absence of opposition from Harvey Fresh (1994) Ltd. An order was issued in PR746156 to formalise the extension.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established