v HPS Services Pty Ltd

[2024] FWC 2892

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

Association of Professional Engineers, Scientists and Managers, Australia, The

HPS Services Pty Ltd

(B2024/1354)

COMMISSIONER PERICA

MELBOURNE, 17 OCTOBER 2024

Application to extend the 30 day period in relation to B2024/1195.

This matter concerns the declaration of the result of a protected action ballot PR779179 held in matter B2024/1195 and declared on 24 September 2024.

The Association of Professional Engineers, Scientists and Managers, Australia, The 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.

HPS Services Pty Ltd objected to the application in an e-mail sent at 11:56 AM on Wednesday, 16 October 2024 in the following terms: “We have sought confirmation in relation to certain questions from the Union, however, none has been forthcoming. On this basis, we object to the extension”. It has not provided any substantive submissions in support of its objection.

It also requested that the matter be dealt with on the papers, which I take to mean on the papers presently before me.

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.[1]

This order will operate on and from 17 October 2024.

COMMISSIONER

[1] PR780363.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia, The (APEX) has applied to the Fair Work Commission (FWC) to extend the 30-day period for which industrial action is authorised by a protected action ballot. The application relates to ballot PR779179, declared on 24 September 2024, in matter B2024/1195. The application was made against HPS Services Pty Ltd and seeks an extension under s.459(3) of the Fair Work Act 2009 (the Act). HPS Services Pty Ltd has objected to the application, but did not provide any substantive submissions in support of its objection.

The legal issue before the Commission was whether the application should be granted, given that it appears to satisfy the requirements of s.459(3) of the Act. This provision allows for an extension of the 30-day period if certain conditions are met, namely that the applicant applies for the extension and that the period has not previously been extended. APEX has argued that it has satisfied these conditions and that the extension should be granted. HPS Services Pty Ltd has not provided any substantive submissions in support of its objection.

The Commissioner found that the requirements of s.459(3) of the Act had been satisfied and that the application should be granted. The Commissioner noted that the period had not previously been extended and that APEX had applied for the extension. The Commissioner was not persuaded by the objection from HPS Services Pty Ltd, which did not provide any substantive submissions in support of its objection. The Commissioner therefore ordered 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.

Pursuant to section 459(3) of the Act, 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 is extended by a further 30 days, effective from 17 October 2024. This order will operate on and from the date of the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established