Summary - application to extend the 30 day period of authorised industrial action - matters relevant to discretion to extend authorised period - good faith bargaining, protected industrial action and extension of authorised period - where extension may not be authorised

[1] On 28 September 2009, the Australian Worker's Union ("AWU") made application under s.659(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 order made by Commission Spencer on 4 August 2009 in B2009/10393. The relevant employer is Tyco Water Pty Ltd.

[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:

(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

(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

(b) the period has not previously been extended."

[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 60_2810">459(3)(b) of the Act) being made out.

[4] I corresponded with the employer's representative, Livingstones Australia and the Applicant union on 28 September 2009, in respect of this application, and sought their views as to whether it intended to contest the factual situation in relation to s.459(3)(a) and s.459(3)(b) of the Act 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's representative provided a written response to my correspondence on 1 October 2009.

[6] That written response indicated expressly that the employer, through its representative, did not dispute the facts on which the application by the AWU relied.

[7] The employer's representative, however, did make some wider comment in the following respects:

"[...] we wish to bring to the attention of Fair Work Australia that the AWU has not made any counter offers in relation to the negotiations. We are also of the belief that they may not be genuinely trying to reach an agreement. The parties have now determined that the best mechanism for negotiations to progress is to restart the negotiations."

[8] The AWU, for its part, submitted in support of its application that whilst it had briefly engaged in industrial action over the course of the period since the declaration of the ballot result on 27 August 2009, it had agreed to suspend further industrial action (including industrial action for which notice had been given) so that discussions could be continued.

[9] The Act affords FWA a discretion as to whether to extend the period for which industrial action is authorised. It so provides at s.459(3) of the Act, which relevantly reads:

"(3) FWA may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if [...]"

[10] What kind of circumstances might be relevant circumstances for the purpose of the exercise of this discretion?

[11] One example might be the course of conduct of a party since the ballot declaration and over the initial 30 day period might be relevant as to whether to extend the period of authorisation. Such conduct might reveal that a bargaining representative who has previously acquired the appropriate authorisation to organise protected industrial action has taken no industrial action in the 30 day period since the declaration of the ballot and has not progressed the agreement making agenda in any manner which is capable of demonstration.

[12] Such issues, if made out, might tell against the utility of an extension of the period of authorised industrial action, and the fairness to the employer who must take measures to guard against the continuing prospect of industrial action.

[13] However, the discretion vested in FWA in this regard must be exercised with circumspection.

[14] In other circumstances, claims that a bargaining representative is not genuinely bargaining or has not made counter offers during the period after the declaration of the protection action ballot might be relevant, potentially, to whether the bargaining representative is conducting itself consistently with the good faith bargaining provisions set out at s.228 of the Act.

[15] The fact that a bargaining representative might be engaged in protected industrial action does not provide an exemption from the bargaining rules set down at s.228 of the Act.

[16] An employer who might wish to make a claim that a bargaining representative which is taking protected industrial action is not acting in compliance with s.228 of the Act could take the opportunity to seek the relief the Act affords by the relevant machinery. This could take the form of an application under s.228 of the Act directed at the union bargaining representative, or else an application under s.240 of the Act.

[17] In arguably more extreme circumstances, statutory machinery exists to suspend or terminate the protected industrial action or to provide for a cooling off period under Division 6 of Part 3-3 of the Act.

[18] In circumstances where an employer as a bargaining representative has access to relief under the Act in respect of the matter about which it complains, I should be disinclined (at least in the current circumstances as I know them and without more) to exercise my discretion to not extend the authorised period of industrial action.

[19] Where relief in respect of the matters complained of is available elsewhere as intended under the Act, it ought to be pursued in the legislative context in which the matter would ordinarily be determined, and not as part of a discretionary exercise of power on its own.

[20] Generally, therefore, an employer who might seek FWA not to exercise its discretion to extend the period for which protected industrial action is authorised on the grounds that a bargaining representative is not acting in accordance with s.228 of the Act ought to ensure such a submission is accompanied by an application under s.228 of the Act. This will ensure the discretion under s.459 of the Act, as it may or may not be exercised, is premised on findings that have had regard to all elements of a claim under s.228 of the Act (including the stipulated statutory preconditions there-to).

[21] A finding that a bargaining representative was in breach of s.228 of the Act might, of course, have ramifications for whether that bargaining representative might be capable of demonstrating that it had been and was genuinely trying to reach agreement (s.443(1)(b) of the Act) for the purposes of any future application under s.437 of the Act (for a new Protected Action Ballot). It is in this respect that other elements of the employer representative's submission (as cited above) might find legislative traction, as it were.

[22] Having reached such a view about the comments put to me by the employer's representative and the manner in which they bear upon FWA's discretion, I can take its submissions no further.

[23] To return to the substantive application: I consider both the factual preconditions (at s.459(3)(a) and 459(3)(b) of the Act) to me exercising my discretion to have been made out on the face of the application before me, and that there are no considerations (for the reasons given above) which would bear on my discretion such that I should not make the order for which application has been made.

[24] 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.

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

Printed by authority of the Commonwealth Government Printer