DECISION

Fair Work Act 2009
s.424—Application to suspend or terminate protected industrial action – endangering life etc.

AGL Loy Yang Pty Ltd T/A AGL Loy Yang
(B2017/394)

COMMISSIONER ROE

MELBOURNE, 29 MAY 2017

Application to suspend or terminate protected industrial action – endangering life etc. – Post industrial action negotiating period.

[1] I have been conducting a conciliation during the 21 day period following the termination of the bargaining in this matter. 1 The bargaining representatives have applied to extend the post industrial action negotiating period for a further 21 days. Significant progress has been made during the initial 21 day period. However, there are still some drafting issues which are unresolved.

[2] The legislation requires as follows at Section 266 (3) and (4):

“(3) The post-industrial action negotiating period is the period that:

(a) starts on the day on which the termination of industrial action instrument is made; and
(b) ends:

(i) 21 days after that day; or
(ii) if the FWC extends that period under subsection (4)—42 days after that day.

(4) The FWC must extend the period referred to in subparagraph (3)(b)(i) if:

(a) all of the bargaining representatives for the agreement jointly apply to the FWC for the extension within 21 days after the termination of industrial action instrument was made; and
(b) those bargaining representatives have not settled all of the matters that were at issue during bargaining for the agreement."

[3] At the latest conference before me on 26 May 2017, all parties advised FWC that they wished to seek an extension to the 21 day period for a further 21 days given the substantial progress towards resolution that has been made.

[4] I have decided to waive any procedural rules for the making of the application. I wrote to all the bargaining representatives and advised them that I would regard an email from the bargaining representatives as an acceptable form for an application. The emails received by me clearly indicate that all the bargaining representatives wish to apply under Section 266(4) for the 21 day extension. During the conciliation process before me, I made a recommendation that the Single Bargaining Unit clarify who were the current bargaining representatives. I received written confirmation at that time of the current bargaining representatives. Some persons who were bargaining representatives earlier in the process resigned.

[5] I am satisfied that all the current bargaining representatives have made the application. I am satisfied that the application has been made jointly by all of the bargaining representatives, prior to expiry of the 21 day period after the termination of industrial action instrument was made. I am also satisfied that the bargaining representatives have not yet settled all of the matters that were at issue during the bargaining for the agreement.

[6] Given that the pre-requisites for the making of an extension have been met, I must extend the period. The post-industrial action negotiating period is extended so that it is now a period of 42 days after the day on which the termination of industrial action instrument was made.

COMMISSIONER

1 [2017] FWC 2533 and PR592754.

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