v Newcastle Port Corporation T/A Port Authority of NSW

[2025] FWC 162

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

Australian Maritime Officers' Union

Newcastle Port Corporation T/A Port Authority of NSW

(B2025/104)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 17 JANUARY 2025

Application to extend the 30 day period in relation to B2024/1619.

This matter concerns the declaration of the result of a protected action ballot PR782267 held in matter B2024/1619 and declared on 20 December 2024.

The Australian Maritime Officers' 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.

Newcastle Port Corporation T/A Port Authority of NSW 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 18 January 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Maritime Officers' Union sought to extend the 30-day period in which industrial action could be authorised by a protected action ballot, which had been declared in relation to Newcastle Port Corporation T/A Port Authority of NSW. The application was made pursuant to section 459(3) of the Fair Work Act 2009, which permits the Fair Work Commission to extend the 30-day period by up to 30 days under certain conditions. Newcastle Port Corporation indicated it had no objection to the application. The primary legal issue before the court was whether the conditions outlined in section 459(3) of the Act had been met, thereby justifying an extension of the 30-day period.

The court examined the application and the relevant provisions of the Act, finding that the requirements for extending the period had indeed been fulfilled. The Australian Maritime Officers' Union had made an application to the Fair Work Commission, and the period had not been previously extended. The court concluded that the application satisfied the statutory criteria, and therefore, the 30-day period should be extended by an additional 30 days.

In light of the findings, the court ordered that the 30-day period for the commencement of protected industrial action be extended by a further 30 days. This extension was to take effect from 18 January 2025, thereby accommodating the union's request and aligning with the provisions of the Fair Work Act. The decision was made in the context of ensuring that the process of protected action ballots was conducted fairly and in accordance with the legislative framework.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established