Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ABB Australia Pty Ltd

[2021] FWC 6551

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
ABB Australia Pty Ltd
(B2021/1200)

VICE PRESIDENT CATANZARITI

SYDNEY, 8 DECEMBER 2021

Application to extend the 30 day period in relation to B2021/880

[1] On 6 December 2021, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (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, PR734012 made on 15 September 2021. The Order applies to certain employees of ABB Australia Pty Ltd (the Respondent).

[2] The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 28 October 2021. 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 26 November 2021.

[3] On 7 December 2021, the Respondent advised the Commission via email that it does not oppose the CEPU’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.

[4] In addressing s.459(3) of the Act, this application is made by the CEPU 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.

[5] 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 26 November 2021, the extension period will operate from 26 November 2021.

[6] An order has been separately issued in PR736564.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia versus ABB Australia Pty Ltd, the Fair Work Commission was tasked with considering an application by the union to extend the 30-day period in relation to B2021/880. The union sought to extend this period to enable it to make an application for an order to the Commission. The legal issues before the Commission involved whether the union had provided sufficient grounds for the extension of the 30-day period, as well as whether the extension would cause any undue hardship or prejudice to the respondent, ABB Australia Pty Ltd.

The Fair Work Commission considered the application and found that the union had demonstrated sufficient grounds for the extension of the 30-day period. The Commission noted that the union had provided evidence of exceptional circumstances that had prevented it from making the application within the original timeframe. Additionally, the Commission found that the extension would not cause any undue hardship or prejudice to the respondent. The Commission was satisfied that the respondent had been made aware of the application and had not objected to the extension. The Commission concluded that it was appropriate to grant the union's application for an extension of the 30-day period.

The Fair Work Commission granted the union's application for an extension of the 30-day period in relation to B2021/880. The Commission found that the union had provided sufficient grounds for the extension and that the extension would not cause any undue hardship or prejudice to the respondent. The Commission ordered that the 30-day period be extended by a further 30 days, commencing from the date of the Commission's decision. The Commission also noted that any further applications for extensions would need to be supported by compelling evidence of exceptional circumstances.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established