v Wilmar Sugar Australia Limited

[2024] FWC 1339

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 Workers' Union

Wilmar Sugar Australia Limited

(B2024/566)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 21 MAY 2024

Application to extend the 30 day period in relation to B2024/412.

This matter concerns the declaration of the result of a protected action ballot PR773270 held in matter B2024/412 and declared on 26 April 2024.

The Australian Workers' 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.

Wilmar Sugar Australia Limited 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 21 May 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union has applied to the Fair Work Commission to extend the 30-day period for commencing industrial action as authorised by a protected action ballot, in relation to Wilmar Sugar Australia Limited. The protected action ballot, PR773270, was declared on 26 April 2024. The application seeks an extension of this period under section 459(3) of the Fair Work Act 2009. The Act permits the Commission to extend the 30-day period by up to an additional 30 days if the applicant for the protected action ballot order applies for the extension and if the period has not already been extended.

The key legal issue for the Commission was whether the application met the statutory requirements for an extension of the 30-day period. Specifically, the Commission needed to determine if the applicant had applied for the extension and whether the period had already been extended. The applicant argued that both conditions were satisfied. Wilmar Sugar Australia Limited did not object to the application. The Commission found that the requirements of the Act were fulfilled, and the application should be granted.

In granting the application, the Deputy President noted that the Australian Workers' Union had complied with the statutory prerequisites for an extension. The Deputy President accepted that the 30-day period had not been previously extended. Wilmar Sugar Australia Limited's lack of objection to the application was also considered. Consequently, 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 are employed by the employer be extended by a further 30 days, effective from 21 May 2024.

CaseChat Overview and Summary

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Background to the litigation

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