v FPC Food Plastics Pty Ltd as Nominee for the FPC Food Plastics Partnership

[2024] FWC 2483

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

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

FPC Food Plastics Pty Ltd as Nominee for the FPC Food Plastics Partnership

(B2024/1132)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 13 SEPTEMBER 2024

Application to extend the 30 day period in relation to B2024/959.

This matter concerns the declaration of the result of a protected action ballot PR777669 held in matter B2024/959 and declared on 9 August 2024.

The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) 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.

On 4 September 2024, FPC Food Plastics Pty Ltd as Nominee for the FPC Food Plastics Partnership (FPC or Employer) advised the Commission that it did not oppose the application but sought that the correct name of itself as the Employer Respondent be corrected in this and the related orders of the Commission.

In the circumstances I decided to conduct a hearing on 12 September 2024 in which FPC confirmed the correct name for the Employer and some of the history and relationships of the legal identities involved. The AMWU sought to amend its application to adopt the correct name and FPC confirmed its support for that step and the absence of an objection to the amended application. Leave was granted to amend the application.

I am satisfied that the relevant requirements of the Act have been met and that the amended 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 9 September 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission (FWC) involved the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers' Union (AMWU), and FPC Food Plastics Pty Ltd as Nominee for the FPC Food Plastics Partnership. The dispute pertained to an application by the AMWU to extend the 30-day period in which industrial action is authorised by a protected action ballot. The Commission was required to determine whether the statutory conditions for an extension were satisfied.

The legal issue central to this case was whether the AMWU's application to extend the 30-day period for industrial action met the criteria outlined in section 459(3) of the Fair Work Act 2009. The application needed to demonstrate that the AMWU had applied for the extension and that the period had not previously been extended. Additionally, the Commission had to consider the Employer's confirmation that it did not oppose the application and its support for the correction of its name in the orders.

In ruling on the matter, the Deputy President of the FWC concluded that the statutory requirements for the extension had indeed been met. The AMWU's application satisfied the conditions stipulated in section 459(3) of the Act. FPC Food Plastics Pty Ltd confirmed its non-opposition to the application and supported the amendment to reflect its correct name. Given these findings, the Deputy President determined that the 30-day period for the commencement of protected industrial action should be extended by an additional 30 days.

The final order issued by the Deputy President extended the 30-day period for protected industrial action for eligible employees who were subject to the ballot and are employed by FPC Food Plastics Pty Ltd. This extension was set to take effect from 9 September 2024.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established