Under the Fair Work Act 2009 (Cth) (FW Act), industrial action by employees is authorised by a protected action ballot if, among other things, the action commences during the 30 day period starting on the date of the declaration of the results of the ballot. Alternatively, if the Fair Work Commission (FWC) has extended that period by up to 30 days, then it is authorised during that extended period.
- Employees of EnergyAustralia Yallourn Pty Ltd (EnergyAustralia) conducted a protected action ballot and the results were declared on 14 February 2013. A majority of the balloted employees voted to approve various forms of industrial action.
- The initial 30 day period expired on 15 March 2013, however the industrial action had not been taken by this date.
- On 23 March 2013, the Construction, Forestry, Mining and Energy Union (Union) applied to FWC to extend the 30 day period for another 30 days.
- Commissioner Bissett granted the extension and EnergyAustralia brought an urgent appeal against the decision and associated order.
The issue being appealed was whether the Commission’s power to extend the 30 day period can be exercised on an application that is made after that period has expired.
EnergyAustralia argued that the power of the Commission to extend the period for taking protected industrial action could not be exercised once the 30 day period had ended. The Full Bench of FWC did not agree with this narrow interpretation, citing decisions which demonstrated there is no established rule of construction that a statutory power to ‘extend’ a period cannot be exercised after the expiry of the period unless the decision maker is expressly empowered to do so.
EnergyAustralia also argued that an extension order has a retrospective effect to confer protection on industrial action taken after the expiry of the 30 day period but before the extension order was made. The Full Bench was not persuaded by this argument.
The Full Bench concluded that the power conferred on the Commission under the FW Act may be exercised after the 30 day period has expired, including in respect of an application made after the expiry of the 30 day period. Accordingly, the Full Bench dismissed the appeal.
Bottom line for employers
Employers need to be mindful that, even though the initial 30 day period for taking protected industrial action has expired following the declaration of the results of a ballot, an applicant can still apply to the FWC for the period to be extended by up to 30 days, if the period has not already been extended.