Association of Professional Engineers, Scientists and Managers, Australia, The v Kogan Creek Power Pty Ltd T/A CS Energy Pty Ltd

[2023] FWC 2692

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, The

Kogan Creek Power Pty Ltd T/A CS Energy Pty Ltd

(B2023/1095)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 16 OCTOBER 2023

Application to extend the 30 day period in relation to B2023/900

This matter concerns the declaration of the result of a protected action ballot (PR765724) held in matter B2023/900 and declared on 15 September 2023.

The Association of Professional Engineers, Scientists and Managers, Australia (APESM of Union) 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 the APESM contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

Kogan Creek Power Pty Ltd T/A CS Energy Pty Ltd (CS Energy) has not advised the Commission of any 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 APESM members employed by CS Energy be extended by a further 30 days.

This order will operate on and from 16 October 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Professional Engineers, Scientists and Managers, Australia, represented by its union, has applied to the Fair Work Commission to extend the 30-day period within which industrial action can be taken by its members employed by Kogan Creek Power Pty Ltd, trading as CS Energy Pty Ltd. This application stems from a protected action ballot that was held and declared on 15 September 2023. The application is made under section 459(3) of the Fair Work Act 2009, which allows for an extension of the 30-day period if certain conditions are satisfied. Specifically, the union must have applied for the extension and the period must not have been previously extended. CS Energy has not raised any objections to the application.

The key legal issue before the Commission was whether the union's application satisfied the statutory requirements for an extension of the 30-day period for taking protected industrial action. The Deputy President Hampton considered whether the union's application met the criteria stipulated in section 459(3) of the Act, namely, that the union had applied for the extension and that the period had not previously been extended. The absence of any objections from CS Energy also played a role in the consideration of the application.

In reaching a decision, the Deputy President Hampton found that the union's application met all the statutory requirements. There was no indication that the 30-day period had been extended before, and CS Energy did not object to the union's application. Given these findings, the Deputy President Hampton concluded that the application should be granted, and the 30-day period was extended by an additional 30 days, from the date of the decision, 16 October 2023. The order allows eligible union members to commence protected industrial action within the extended timeframe.

This decision extends the 30-day period for the commencement of protected industrial action by the union's members employed by CS Energy by an additional 30 days, effective from 16 October 2023. This order ensures that the union members have the opportunity to pursue their industrial action within the extended legal framework provided by the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established