v Independent Living Specialists Pty Limited

[2025] FWC 262

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

Transport Workers' Union of Australia

Independent Living Specialists Pty Limited

(B2025/171)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 29 JANUARY 2025

Application to extend the 30 day period in relation to B2024/1638.

This matter concerns the declaration of the result of a protected action ballot PR782454 held in matter B2024/1638 and declared on 6 January 2025.

The Transport Workers' Union of Australia 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.

Independent Living Specialists Pty Limited has advised the Commission they do not have 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 4 February 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Transport Workers' Union of Australia applied for an extension of the 30-day period during which industrial action could be authorised by a protected action ballot. The ballot, PR782454, was declared in matter B2024/1638 on 6 January 2025. The application was made under section 459(3) of the Fair Work Act 2009, which allows for the extension of the 30-day period if certain conditions are met. The Transport Workers' Union argued that all requirements for the extension had been satisfied and requested an additional 30 days. Independent Living Specialists Pty Limited, the employer, did not object to the application.

The court had to determine whether the application met the statutory criteria for extending the 30-day period. Section 459(3) of the Act stipulates that an extension can be granted if the applicant for the protected action ballot order applies for the extension and if the period has not been extended before. The court needed to verify whether the application was made by the relevant applicant and whether the period had been extended previously. The Transport Workers' Union submitted that both conditions were met, and the employer did not contest these assertions.

The Deputy President of the Fair Work Commission, Hampton, found that the application complied with the statutory requirements. The Transport Workers' Union was indeed the applicant for the protected action ballot order, and the 30-day period had not been extended previously. Consequently, the application was granted. The 30-day period for commencing protected industrial action was extended by an additional 30 days, effective from 4 February 2025. This extension provided eligible employees more time to take authorised industrial action.

Pursuant to section 459(3) of the Fair Work Act, the Deputy President ordered that the 30-day period for the commencement of protected industrial action for eligible employees, who were subject to the ballot and employed by Independent Living Specialists Pty Limited, be extended by a further 30 days. This extension took effect from 4 February 2025.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established