v Genesis Cancer Care QLD Pty Limited

[2024] FWC 3288

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

United Workers' Union

Genesis Cancer Care QLD Pty Limited

(B2024/1532)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 27 NOVEMBER 2024

Application to extend the 30 day period in relation to B2024/1356.

This matter concerns the declaration of the result of a protected action ballot PR780333 held in matter B2024/1356 and declared on 31 October 2024.

The United 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.

Genesis Cancer Care QLD Pty Limited 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 27 November 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application from the United Workers' Union to extend the 30-day period within which industrial action could be authorised following a protected action ballot held by the union. The application was made under section 459(3) of the Fair Work Act 2009 and related to a ballot result declared on 31 October 2024. The union sought an extension of the period during which industrial action could be authorised by up to 30 days, arguing that the statutory requirements for such an extension had been satisfied.

The central legal issue for the Deputy President to determine was whether the union had met the statutory criteria for extending the 30-day period. Section 459(3) of the Act permits an extension if the union applies for the period to be extended and if the period has not previously been extended. The Deputy President found that the union had indeed made the application and that there was no prior extension of the 30-day period. Additionally, Genesis Cancer Care QLD Pty Limited did not object to the application, which was necessary for the extension to be granted.

Based on the union's compliance with the statutory requirements and the absence of any objection from the employer, the Deputy President determined that the application should be granted. The Deputy President ordered that the 30-day period for the commencement of protected industrial action be extended by a further 30 days, effective from 27 November 2024. This extension was made in accordance with section 459(3) of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established