[1] On 15 March 2010, the Liquor, Hospitality and Miscellaneous Union ("the LHMU") made an application under s.459(3) of the Fair Work Act 2009 ("the Act") to extend the period in which certain industrial action is to commence for purposes of s.459(1)(d)(ii) of the Act in respect of the B2010/2593. The relevant employer is Griffith University.

[2] Section 459 of the Act reads 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:

(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

(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii) if FWA has extended that period under subsection (3) - during the extended period.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

(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) FWA 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 FWA for the period to be extended; and

[3] Section 459(3) of the Act vests a discretion in Fair Work Australia ("FWA") in respect of whether to grant such an application upon the two factual preconditions (at s.459(3)(a) and 459(3)(b) of the Act) being made out.

[4] I corresponded with the employer on 16 March 2010 in respect of this application, and sought its views as to whether it intended to contest the factual situation in relation to s.459(3)(a) and 459(3)(b) of the Act (including as to the types of industrial action taken within the first 30 day period) and, further, whether it intended to press any relevant considerations in relation to the discretion with which FWA is invested in the section.

[5] The employer provided a written response to my correspondence on 22 March 2010.

[6] In that response, the employer expressly indicated that everything presented in the LHMU's application was factual however, the employer opined that the LHMU and its members had already had sufficient time to undertake all forms of industrial action approved by the protected action ballot.

[7] Because of this, the employer opposes the extension of time.

[8] Neither party sought a hearing in relation to this application, and both were satisfied that I should determine whether to allow the application "off the documents".

[9] On what is before me, the LHMU has acted on various of its industrial action options since the declaration of the ballot.

[10] There does not appear to me, therefore, to be any evidence before me that would dissuade me from exercising my discretion in favour of the Applicant.

[11] This is not a case in which the Applicant has not actively utilised its options under the Act to undertake protected industrial action within the first 30 day period for reason of uninterest in the agreement making process.

[12] That is, I might view my discretion differently if during the preceding period the Applicant had shown uninterest in pursuing the bargaining agenda and simply not acted (by way of taking protected industrial action or engaging the employer in negotiations in the prior 30 day period).

[13] I therefore order that the 30-day period referred to in s.459(1)(d)(i) of the Act be extended by a further 30 days.

[14] An order to that effect will issue simultaneously with this decision.

Printed by authority of the Commonwealth Government Printer