Association of Professional Engineers, Scientists and Managers, Australia, Managers and Professionals Division v Illawarra Coal Holdings Pty Limited T/A Appin Mine

[2023] FWC 1844

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

Association of Professional Engineers, Scientists and Managers, Australia, - Managers and Professionals Division
v

Illawarra Coal Holdings Pty Limited T/A Appin Mine

(B2023/747)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 26 JULY 2023

Application to extend the 30 day period in relation to B2023/494

This matter concerns the declaration of the result of a protected action ballot (PR762538) held in matter B2023/494 and declared on 3 July 2023.

The Association of Professional Engineers, Scientists and Managers, Australia – Managers and Professionals Division (Professionals Australia) has made an application pursuant to s.459(3) of the Fair Work Act 2009 (Act) to extend the 30 day period in which industrial action is authorised by the relevant protected action ballot.

Section 459(3) of the Act provides as follows:

“(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.”

The application made by Professionals Australia contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

Illawarra Coal Holdings Pty Limited T/A Appin Mine has advised the Commission it has no objection to this application.

I am satisfied that the relevant requirements of the Act have been met and that the application should be granted.

Accordingly, pursuant to section 459(3) of the Act, I order that the 30 day period for the commencement of protected industrial action for eligible Professionals Australia members employed by Illawarra Coal Holdings Pty Limited T/A Appin Mine be extended by a further 30 days.

This order will operate on and from 26 July 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by the Association of Professional Engineers, Scientists and Managers, Australia – Managers and Professionals Division (Professionals Australia) to extend the 30-day period in which industrial action is authorised by a protected action ballot. The application was made in relation to industrial action against Illawarra Coal Holdings Pty Limited T/A Appin Mine. The Commission needed to determine whether the requirements of section 459(3) of the Fair Work Act 2009 were satisfied for the period to be extended.

The legal issue before the Commission was whether the application met the statutory requirements for extending the 30-day period for protected industrial action. Specifically, the Commission needed to consider whether Professionals Australia had applied for the extension, and whether the period had not already been extended. The applicant contended that the requirements were met and the period should be extended by a further 30 days. The respondent, Illawarra Coal Holdings, indicated it had no objection to the application.

The Deputy President found that the relevant requirements of the Act had been met, and that the application should be granted. The applicant had made an application to extend the period, and the period had not previously been extended. Therefore, the Commission was satisfied that the application should be approved. The 30-day period for the commencement of protected industrial action was extended by a further 30 days, to operate from 26 July 2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established