United Workers' Union v Terminals Pty Ltd T/A Quantem Bulk Liquid Storage and Handling

[2023] FWC 414

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

United Workers’ Union
v

Terminals Pty Ltd T/A Quantem Bulk Liquid Storage and Handling

(B2023/118)

VICE PRESIDENT CATANZARITI

SYDNEY, 20 FEBRUARY 2023

Application to extend the 30 day period in relation to B2022/1670

On 15 February 2023, 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, PR 747825 made on 10 November 2022. The Order applies to certain employees of Terminals Pty Ltd T/A Quantem Bulk Liquid Storage and Handling (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 January 2023. 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 expires at midnight on 16 February 2023.

On 16 February 2023, 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 expires at midnight on 16 February 2023, the extension period will operate from 16 February 2023.

An order has been separately issued in PR750890.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by the United Workers’ Union to extend the 30-day period for protected industrial action as authorised by a protected action ballot order. This application was made under section 459(3) of the Fair Work Act 2009, following a ballot that had resulted in a majority endorsement of the proposed industrial action by the employees of Terminals Pty Ltd T/A Quantem Bulk Liquid Storage and Handling. The application was filed against the Respondent, who did not oppose the extension. The Commission's role was to determine whether the application met the criteria set out in section 459 of the Act and whether an extension was appropriate.

The legal issue before the Commission was whether the requirements for extending the 30-day period for protected action, as stipulated in section 459 of the Act, had been satisfied. Specifically, the Commission needed to assess if the union had made the application in accordance with the provisions of the Act, and if the period in question had not been previously extended. Given that the union fulfilled the criteria and the period had not been extended before, the Commission found that an extension was warranted. The Commission also noted that the application was made before the expiry of the original 30-day period, ensuring the continuity of the union's legal right to organise and conduct the protected action.

In its decision, the Commission found that the United Workers’ Union's application met all the necessary requirements under the Fair Work Act. The Commission was satisfied that the union had acted within the provisions of the Act and that the period had not been previously extended. Consequently, the Commission granted the application for an extension of the 30-day period for protected action. The extension was set to commence from the expiration of the original period, ensuring that the union could continue to organise and conduct the protected action without interruption. This decision was made on the basis of the documentation provided and the absence of opposition from the Respondent.

The Fair Work Commission issued an order extending the 30-day period for protected action from the date of its decision, thereby allowing the United Workers’ Union to continue with the planned industrial action. The extension was to be effective from the date the original period would have expired, ensuring that the union's rights and the employees' rights to engage in protected action were upheld. The order was issued under separate case number PR750890, reflecting the administrative process followed by the Commission in making this determination.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established