v Stowe Australia Pty Ltd
[2024] FWC 1413
•30 MAY 2024
| [2024] FWC 1413 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.459—Protected action
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Stowe Australia Pty Ltd
(B2024/706)
| COMMISSIONER CRAWFORD | SYDNEY, 30 MAY 2024 |
Application to extend the 30 day period in relation to B2024/246 – application granted.
Background
This matter concerns the declaration of the result of a protected action ballot PR772712 held in matter B2024/246 and declared on 10 April 2024.
The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has made an application pursuant to s.459(3) of the Fair Work Act 2009 (FWAct) to extend the 30 day period in which industrial action is authorised by the relevant protected action ballot.
Section 459(3) of the FW 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.
The initial 30 day period for the taking of protected industrial action ended on 9 May 2024. The CEPU’s application was filed on 28 May 2024.
Stowe Australia Pty Ltd (Stowe) notified the Commission on 29 May 2024 that it opposed the CEPU’s application. Stowe argued that the Commission could not extend the 30 day period after that 30 day period has ended. Stowe also argued if the period is extended, the extended period should commence from when the initial 30 day period ended, as opposed to the date of the decision to grant an extension. Stowe also raised some concerns about the CEPU’s approach to bargaining.
Given Stowe’s opposition to the application, I listed a hearing on 30 May 2024 via video. Alister Kentish (Legal Officer) appeared for the CEPU at the hearing and Lisa Carey (Solicitor – National Electrical Contractors Association) and Scott Wark (Branch Manager) appeared for Stowe.
After hearing submissions from the parties, I indicated I had decided to grant the application and to extend the period for the taking of protected industrial action by 30 days. The following are my brief reasons for this decision.
Consideration
Ms Carey helpfully accepted at the start of the hearing that there is no impediment to granting the CEPU’s application on the basis that the initial 30 day period ended on 9 May 2024 and the CEPU’s application was not made until 28 May 2024. That issue has been determined by a majority of the Full Federal Court in EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FCAFC 8 (EnergyAustralia Yallourn). I am bound to follow that judgment.
Mr Kentish also helpfully indicated there was no dispute that any extended period would commence from the date the initial 30 day period ended, as opposed to the date of the decision to grant an extension. That is clearly correct.
The resolution of those issues meant the only contested issue I needed to determine was whether I should exercise my discretion to extend the 30 day period. Vice President Asbury (who was Deputy President Asbury when the decision was issued) provided the following summary of the approach to be taken to considering whether to exercise the discretion to extend the 30 day period in Australian Meat Industry Employees Union, The [2015] FWC 2712 at [10] to [13]:
“Section 459(1) establishes a 30 day period where the right to take industrial action can be described on the basis that employees are required to “use it or lose it”. Section 459(3) gives the FWC a discretionary power to extend the 30 day period. That power may be exercised in circumstances where the application for an extension is made either before or after the expiration of the original 30 day period.[1]
It has been held that the discretion should be exercised in situations where it can be demonstrated that bargaining is proceeding and an extension is consistent with the objects of the Act as specified in s.436.[2] The discretion is wide and is unconditioned by a statutory direction.[3] Parliament has provided for a one off extension without the need for a further ballot, and cogent reasons are required to refuse an application for an extension, such as a change in disposition or composition of employees.[4]
Circumstances in which an extension has been granted are that parties are bargaining in good faith; there is not a lengthy delay between the expiry of the original 30 day period and the application for an extension being made;[5] parties have participated in conciliation during the original 30 day period;[6] or have refrained from taking industrial action and bargained constructively.[7] It is also the case that if an overly restrictive view is taken of the circumstances in which the discretion will be exercised, the result will be that industrial action may be taken in a number of forms during the initial 30 day period, simply to preserve the right to take it after that period has expired. This outcome is not consistent with the objects in s.436 of the Act of establishing a fair and simple process.
In my view the term “extension” implicitly means that the reference point for the extension is the date upon which the first 30 day period expired, and the time for the extension runs from no later than that date, so that if a second 30 day extension is granted it includes the last day of the first 30 day period, and is a 29 day extension from that date.[8]”
Mr Kentish submitted that the majority judgment in EnergyAustralia Yallourn identified that the purpose of the temporal limitations in s.459 of the FW Act is to “address the possibility that the will of the majority of employees to take particular industrial action may have evaporated prior to that industrial action taking place.”[9] Mr Kentish submitted there was no evidence before the Commission that the will of the relevant CEPU members to take industrial action has evaporated. I accept that submission.
There was an unusually long delay in this case between the 30 day period ending on 9 May 2024 and the CEPU’s application being filed on 28 May 2024. I accept this is relevant to whether the discretion to extend the 30 day period should be exercised. However, as submitted by Mr Kentish, the practical consequence of the delay is that CEPU members have not been able to take protected industrial action since the 30 day period ended on 9 May 2024 and, if the maximum extension period of 30 days is granted, CEPU members will only be able to commence protected industrial action until 7 June 2024, given the extended 30 day period commences on the day the initial 30 day period ended. I agree that the delay has operated to the detriment of the CEPU as opposed to Stowe. I do not consider the delay is a sufficient ground to refuse the application.
In addition, despite the delay, granting an extension will provide CEPU members with a brief additional period to commence taking protected industrial action without having to incur the time and expense of a further protected industrial action ballot. I consider that weighs in favour of the extension being granted.
It is clear from the filed material that bargaining has been continuing and the parties have been exchanging offers. There is no evidence that suggests anything untoward or unusual has happened in relation to the bargaining process. I consider the ongoing bargaining weighs in favour of an extension being granted.
Having considered all the submissions, I was satisfied that the relevant requirements of the FW 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 to 7 June 2024.
This order will operate on and from 30 May 2024.
COMMISSIONER
[1] National Union of Workers v Symbion Pharmacy Services Pty Ltd [2009] FWA 1284 per O’Callaghan SDP at [11]; AMACSU and Others v Flinders Operating Services Pty Ltd T/As Alinta Energy[2011] FWA 4617 per Bartel DP at [10].
[2] National Union of Workers v Symbion Pharmacy Services Pty Ltd [2009] FWA 1284 per O’Callaghan SDP at [11]
[3] Re: Transport Workers’ Union of Australia [2011] FWA 1097 per Lewin C.
[4] MUA v DP World Adelaide Pty Ltd [2010] FWA 7638 per Hampton C.
[5] National Union of Workers v Symbion Pharmacy Services Pty Ltd op. cit.
[6] AMACSU and Others v Flinders Operating Services Pty Ltd T/As Alinta Energy op. cit.
[7] MUA v DP World Adelaide Pty Ltd op. cit.
[8] AMACSU and Others v Flinders Operating Services Pty Ltd T/as Alinta Energy op. cit.
[9] EnergyAustralia Yallourn (North and Bromberg JJ) at [15].
Printed by authority of the Commonwealth Government Printer
<PR775477>
0
2
0