v Gemco Rail Pty Ltd

[2024] FWC 1964

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)

Gemco Rail Pty Ltd

(B2024/940)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 25 JULY 2024

Application to extend the 30 day period in relation to B2024/763.

This matter concerns the declaration of the result of a protected action ballot PR776068 held in matter B2024/763 and declared on 28 June 2024.

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

Gemco Rail Pty Ltd has not advised the Commission of any 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 25 July 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union, on behalf of its members, applied to the Fair Work Commission for an extension of the 30-day period within which industrial action could be taken by employees who had participated in a protected action ballot. The application was made under section 459(3) of the Fair Work Act 2009, seeking to extend the period by an additional 30 days. Gemco Rail Pty Ltd, the employer, did not oppose the application. The dispute was declared on 28 June 2024 and the application was made on 25 July 2024.

The central legal issue before the Deputy President was whether the statutory conditions for extending the period were satisfied. These conditions included that the applicant for the protected action ballot order must apply to the FWC for the extension and that the period had not previously been extended. The application argued that these conditions had been met and that the extension should be granted. Given that Gemco Rail Pty Ltd did not object to the application, the Deputy President found that the statutory requirements were indeed met. Consequently, the Deputy President was satisfied that the application should be granted.

The Deputy President concluded that the application met the criteria set out in the Fair Work Act 2009, and the 30-day period was therefore extended by a further 30 days. This extension was to apply from 25 July 2024, the date of the decision. The order was made pursuant to section 459(3) of the Act, reflecting the Deputy President's determination that the statutory conditions were satisfied. This decision provided the employees with additional time to organise and potentially commence protected industrial action if necessary.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established