Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Electrical, Energy and Services Division v Devro Pty Limited

[2023] FWC 537

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division

Devro Pty Limited

(B2023/190)

VICE PRESIDENT CATANZARITI

SYDNEY, 3 MARCH 2023

Application to extend the 30 day period in relation to B2022/1826

On 28 February 2023, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division (Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s. 459(3) of the Fair Work Act 2009 (Cth) (the Act) to extend the 30 day period for protected action authorised by a protected action ballot order, PR748878 made on 13 December 2022. The Order applies to certain employees of Devro Pty Limited (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 1 February 2023. Pursuant to s.459(1)(d)(i) of the Act, the 30 day period for protected action commenced on the date of the declaration of the results of the ballot and therefore expired at midnight on 2 March 2023.

On 1 March 2023, the Respondent advised the Commission via email that it does not oppose the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division’s application to extend the 30 day period for protected industrial action. Accordingly, I have determined the matter on the basis of the documentation filed.

In addressing s.459(3) of the Act, this application is made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division who is the Applicant for which the protected action ballot order was issued. Furthermore, the period specified in s.459(1)(d)(i) has not been previously extended.

On that basis and on the material before me, I am satisfied that each of the relevant requirements of s.459 of the Act have been met and that a 30 day extension is appropriate. As the 30 day period expired at midnight on 2‎ ‎March‎ ‎2023, the extension period will operate from 2‎ ‎March‎ ‎2023.

An order has been separately issued in PR760030.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) dealt with an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division (Applicant) to extend the 30-day period for protected industrial action authorised by a ballot order against Devro Pty Limited (Respondent). The dispute arose under the Fair Work Act 2009 (Cth) (the Act). The 30-day period for protected action, which began on the declaration of the results of a protected action ballot, was set to expire on 2 March 2023. The Applicant sought an extension of this period pursuant to s. 459(3) of the Act.

The legal issue before the FWC was whether the conditions stipulated in s. 459(3) of the Act were satisfied to warrant an extension of the 30-day period for protected action. The FWC considered whether the application was made by the union (as required by the Act), whether the specified period had already been extended, and whether the extension was justified based on the material presented. The Respondent did not oppose the application, which facilitated the FWC's determination.

In addressing the application, the FWC noted that the Applicant met all the relevant requirements of s. 459 of the Act. Given that the specified period had not been previously extended and considering the material before the FWC, it was deemed appropriate to grant a 30-day extension. The extended period would commence from 2 March 2023, the date of the expiration of the original 30-day period.

The FWC issued an order extending the period for protected action as requested. This decision was separately documented in PR760030.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established