v Joy Global Australia Pty Ltd T/A Komatsu Mining Corp.

[2024] FWC 3075

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)

Joy Global Australia Pty Ltd T/A Komatsu Mining Corp.

(B2024/1438)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 6 NOVEMBER 2024

Application to extend the 30 day period in relation to B2024/1243.

This matter concerns the declaration of the result of a protected action ballot PR779524 held in matter B2024/1243 and declared on 8 October 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.

Joy Global Australia Pty Ltd trading as Komatsu Mining Corp 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 6 November 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) has applied to the Fair Work Commission (FWC) for an extension of the 30-day period within which industrial action can be taken by employees who participated in a protected action ballot. The application was made under section 459(3) of the Fair Work Act 2009. The relevant protected action ballot was PR779524, which was declared on 8 October 2024. The union sought to extend the period for taking industrial action by a further 30 days, given that the period had not previously been extended and the union had met all the requirements of the Act.

The primary legal issue before the Deputy President was whether the union had satisfied the requirements under section 459(3) of the Fair Work Act 2009 to extend the 30-day period for the commencement of protected industrial action. The union argued that the requirements had been met and that the extension was warranted. Joy Global Australia Pty Ltd, trading as Komatsu Mining Corp, indicated that it had no objection to the application. The Deputy President examined the application and the relevant provisions of the Act to determine if the union had complied with the statutory criteria for extending the industrial action period.

In making the decision, the Deputy President noted that the union had met all the statutory requirements for an extension of the industrial action period. The period had not been previously extended, and the union had made the application within the stipulated timeframe. Additionally, the employer had no objection to the application. Based on these findings, the Deputy President concluded that the union's 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 6 November 2024.

The final order of the Fair Work Commission was 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 Joy Global Australia Pty Ltd trading as Komatsu Mining Corp is extended by a further 30 days. This extension will commence on 6 November 2024.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established