v Tas IVF Pty Ltd T/A Tas IVF

[2024] FWC 2618

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

Health Services Union

Tas IVF Pty Ltd T/A Tas IVF

(B2024/1240)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 23 SEPTEMBER 2024

Application to extend the 30 day period in relation to B2024/1009.

This matter concerns the declaration of the result of a protected action ballot PR778155 held in matter B2024/1009 and declared on 23 August 2024.

The Health Services 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.

Tas IVF Pty Ltd trading as Tas IVF 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 23 September 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Health Services Union sought an extension of the 30-day period during which industrial action could be authorised by a protected action ballot conducted by Tas IVF Pty Ltd. The application was made under section 459(3) of the Fair Work Act 2009. The dispute centred on the interpretation and application of the statutory provisions concerning the extension of the period for protected industrial action following the declaration of the ballot results on 23 August 2024.

The legal issues before the court involved determining whether the requirements of section 459(3) of the Act had been satisfied. Specifically, the court needed to assess whether the applicant for the protected action ballot order had applied for an extension, and whether the 30-day period had not previously been extended. Tas IVF Pty Ltd indicated it had no objection to the application, simplifying the court’s task of deciding whether the application should be granted.

The Deputy President concluded that the requirements of the Act were indeed met. The application had been made by the Health Services Union, and there was no indication that the 30-day period had been extended before. The court granted the application, ordering that the 30-day period for the commencement of protected industrial action be extended by a further 30 days, effective from 23 September 2024. This extension provides additional time for any necessary industrial action to be authorised and carried out within the framework of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established