v Bowen Rail Company Pty Ltd Summary

[2024] FWC 3572

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

Australian Federated Union of Locomotive Employees

Bowen Rail Company Pty Ltd

(B2024/1670)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 23 DECEMBER 2024

Application to extend the 30 day period in relation to B2024/1320.

This matter concerns the declaration of the result of a protected action ballot PR780177 held in matter B2024/1320 and declared on 26 November 2024.

The Australian Federated Union of Locomotive Employees 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 contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

Bowen Rail Company Pty Ltd 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 employees who were subject to the ballot and are employed by the Employer be extended by a further 30 days.

This order will operate on and from 26 December 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Federated Union of Locomotive Employees applied to the Fair Work Commission under section 459(3) of the Fair Work Act 2009 to extend the 30-day period during which industrial action could be authorised by a protected action ballot. This application followed the declaration of the result of a protected action ballot held in matter B2024/1320, which was declared on 26 November 2024. Bowen Rail Company Pty Ltd, the employer in question, did not object to the application. The central issue for the Fair Work Commission was whether the conditions stipulated in section 459(3) of the Act were met, thereby justifying an extension of the 30-day period. The Commission determined that the requirements were indeed fulfilled.

The legal question before the Fair Work Commission was whether the application met the criteria set out in section 459(3) of the Fair Work Act 2009. Specifically, the Commission needed to confirm if the applicant had applied for an extension and whether the period had not been extended before. The Act allows for an extension of up to 30 days if these conditions are met. The Commission also needed to ensure that the application was made within the permissible timeframe and that there were no legal impediments to granting the extension. The application by the Australian Federated Union of Locomotive Employees argued that all conditions were satisfied, and the period should be extended by a further 30 days.

The Fair Work Commission found that the application met the statutory requirements and granted the extension. Deputy President Hampton confirmed that the Australian Federated Union of Locomotive Employees had indeed applied for the extension and that the 30-day period had not been extended previously. Bowen Rail Company Pty Ltd's lack of objection further supported the application's merit. The Commission concluded that there were no legal obstacles to approving the extension. Consequently, the 30-day period for the commencement of protected industrial action for eligible employees who were subject to the ballot and are employed by the employer was extended by a further 30 days, effective from 26 December 2024. This decision was made in accordance with section 459(3) of the Act.

v Bowen Rail Company Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established