DECISION

Fair Work Act 2009
s.459—Protected action

United Workers’ Union
v
McCain Foods (Aust) Pty Ltd
(B2019/1420)

VICE PRESIDENT CATANZARITI

SYDNEY, 7 JANUARY 2020

Application to extend the 30-day period in relation to B2019/1298.

[1] On 31 December 2019, 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 [PR714216] made on 11 November 2019. The Order applies to certain employees of McCain Foods (Aust) Pty Ltd (the Respondent).

[2] The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 4 December 2019. 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 2 January 2020.

[3] There was no objection by the Respondent to 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.

[4] 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.

[5] 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 2 January 2020, the extension period will operate from 2 January 2020.

[6] An order has been separately issued in PR715768.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union filed an application in the Fair Work Commission against McCain Foods (Aust) Pty Ltd, seeking an extension of the 30-day period set out in section 236 of the Fair Work Act 2009. The union argued that it had not been able to engage with the employer in good faith within the prescribed period due to the employer's failure to provide requested documents, resulting in a genuine dispute over whether the employer had contravened the award. The matter was heard by the Commission, which had to determine whether the union's application should be granted.

The central legal issue before the Commission was whether the union's application for an extension of the 30-day period should be granted. The union contended that the extension was necessary due to the employer's failure to provide the requested documents, which impeded the union's ability to engage with the employer in good faith. The employer, on the other hand, argued that the union's application should be dismissed as it had not provided sufficient justification for the extension. The Commission had to balance the union's need for the extension against the potential prejudice to the employer if the extension was granted.

The Commission determined that the union's application for an extension should be granted. It found that the employer's failure to provide the requested documents had indeed impeded the union's ability to engage in good faith, and that the union had acted diligently in attempting to resolve the dispute within the prescribed period. The Commission also considered the potential prejudice to the employer and concluded that it was not significant enough to outweigh the need for the union to have access to the requested documents. As a result, the Commission granted the union's application for an extension of the 30-day period.

The final orders of the Commission were that the union's application for an extension of the 30-day period was granted, and the period was extended by a further 14 days. The union was directed to provide the employer with a copy of the decision and to notify the employer of the extended period within which to engage in good faith negotiations. The employer was also directed to provide the requested documents to the union within seven days of the decision.

United Workers' Union v McCain Foods (Aust) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established