v GH Varley Pty Ltd

[2024] FWC 3565

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)

GH Varley Pty Ltd

(B2024/1660)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 20 DECEMBER 2024

Application to extend the 30 day period in relation to B2024/1445.

This matter concerns the declaration of the result of a protected action ballot PR781092 held in matter B2024/1445 and declared on 22 November 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.

GH Varley 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 20 December 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide on an application by the Australian Manufacturing Workers' Union (AMWU) to extend the 30-day period in which industrial action could be taken following a protected action ballot. The union applied for an extension of this period under section 459(3) of the Fair Work Act 2009. The employer, GH Varley Pty Ltd, did not object to the application. The Commission had to determine whether the AMWU's application met the statutory requirements for such an extension, specifically whether the 30-day period had not previously been extended and whether the union had applied for the extension within the allowable timeframe.

The primary legal issue before the Commission was whether the statutory conditions for extending the 30-day period for industrial action were satisfied. Section 459(3) of the Fair Work Act 2009 sets out the conditions that must be met for such an extension to be granted. These conditions include the union's application to the Commission and the fact that the period has not been previously extended. The Commission had to verify that the union's application was timely and that no prior extension had been granted.

Upon reviewing the application and the employer's lack of objection, the Deputy President concluded that the union's application fulfilled the statutory requirements. The 30-day period for the commencement of protected industrial action was extended by an additional 30 days, effective from 20 December 2024. The decision was based on the fact that the union's application was made within the stipulated timeframe and that no previous extension had been granted.

The Commission's order extended the 30-day period for the commencement of protected industrial action for eligible employees employed by GH Varley Pty Ltd, who were subject to the ballot. This extension was to take effect from 20 December 2024, thereby allowing additional time for the union to take 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