Application by Australian Federated Union of Locomotive Employees
Cited 1×
Applicant: Australian Federated Union of Locomotive Employees
Respondent: Aurizon Operations Limited
Ratio
Section 459(3) of the Fair Work Act 2009 confers a discretion on the FWC to extend the 30-day period during which industrial action authorised by a protected action ballot may commence by up to a further 30 days, provided the applicant applies and the period has not previously been extended. Both factual preconditions being satisfied and no considerations weighing against the extension, the application was granted.
Outcome
For applicant
granted
Authority signal
Cited 1×
Signal-weighted score: 0.0
Derived from how later decisions have treated this case. Dark green = leading authority,
green = positively treated, grey = neutral or sparse data,
amber = caution, red = treated negatively.
Key facts · 6
- On 2 December 2014, the FWC issued a protected action ballot order (PR558398) requiring a ballot to be conducted among AFULE members.
- On 7 January 2015, the Australian Electoral Commission returned the ballot results indicating a substantial majority of AFULE members wished to engage in protected industrial action.
- The Union applied on 3 February 2015 to extend the 30-day protected action period by a further 30 days.
- The Union stated it had not engaged in any protected action and did not foresee taking action before expiry of the initial 30-day period.
- The original 30-day period was to expire on 5 February 2015.
- The Respondent neither consented to nor opposed the application.
Factors
For
- Both factual preconditions in s.459(3) were satisfied: application made by the applicant for the protected action ballot order and the period had not previously been extended.
Against
Legislation referenced
- Fair Work Act 2009 (Cth) s.459
- Fair Work Act 2009 (Cth) s.437(1)
Concept tags · 4
Principles · 1
articulates para 3
Section 459(3) of the Fair Work Act 2009 confers a discretion on the Commission to extend the 30-day period during which industrial action is authorised by a protected action ballot by up to 30 days if an applicant applies for the period to be extended and the period has not previously been extended.
Archived text (756 words)
Application by Australian Federated Union of Locomotive Employees [2015] FWC 845 (4 February 2015)
[2015] FWC 845
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 Federated Union of Locomotive Employees
v
Aurizon Operations Limited
(B2015/260)
COMMISSIONER SPENCER
BRISBANE, 4 FEBRUARY 2015
Application to extend the 30-day period in relation to B2014/1648.
[1]
On 3 February 2015, the Australian Federated Union of Locomotive Employees (the ‘Union’) made an application, pursuant
to
s.459(3)
of the
Fair Work Act 2009
(the ‘Act’), to extend the 30 day period in which industrial action is authorised by the protected action ballot order,
made by the Commission as currently constituted on 2 December 2014 [
PR558398
], for a further 30 days. The Respondent is Aurizon Operations Limited.
Legislation
[2]
The provisions governing the grant of such an extension are set out in
s.459
of the Act as follows:
459 Circumstances in which industrial action is authorised by protected action ballot
(1) Industrial action by employees is authorised by a protected action ballot if:
(a) the action was the subject of the ballot; and
(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and
(c) more than 50% of the valid votes were votes approving the action; and
(d) the action commences:
(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or
(ii) if the FWC has extended that period under subsection (3)—during the extended period.
(2) If:
(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action
ballot included periods of industrial action of a particular duration; and
(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;
then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes
of paragraph (1)(a).
(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.
[3]
Section 459(3)
of the Act confers a discretion on the Commission as to whether to grant such an application upon satisfaction as to the two factual
preconditions set out in sub-sections (a) and (b). In the application, the Union set out the following grounds for the order to be
made:
“1. On 2 December 2014 the Fair Work Commission issued an order (
PR558398
) pursuant to
s.437(1)
of the
Fair Work Act 2009
(Cth) requiring a protected action ballot to be conducted to determine whether eligible AFULE members wished to engage in protected
industrial action.
2. On 7 January 2015 the Australian Electoral Commission returned the results of the ballot indicating a substantial majority of AFULE
members wished to engage in the Industrial Action. The results are annexed to this application and marked “AFULE 1”.
3. The Applicant has not to date taken any protected action and does not foresee taking action prior to the expiration of the 30 day
protected action period.
4. The Applicant makes application pursuant to
s 459(3)
of for an order extending the period of protected action referred to in
s. 459(1)(d)(i)
of the Act from the expiration date of the 30 day period, which commenced 7 January 2015, for a further 30 days.”
[4]
On 4 February 2015, Mr Heenan, on behalf of the Respondent, corresponded with my chambers advising that the Respondent neither consented
to nor opposed the application made by the Applicant.
[5]
The Applicant for the protected action ballot order has applied to the FWC for the period to be extended and I am satisfied that the
period has not previously been extended. Given that the two factual preconditions set out in
s.459(3)
have been met, and that there are no considerations which would weigh against my discretion to refuse the application, I intend to
grant it. I will therefore order that the 30 day period, which currently ends on 5 February 2015, be extended by a further 30 days.
[6]
An Order to that effect will be issued separately [
PR560719
].
COMMISSIONER
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<Price code A, PR560717>