Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Anglo Coal (Moranbah North Management) Pty Ltd

[2023] FWC 3375

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

Anglo Coal (Moranbah North Management) Pty Ltd

(B2023/1369)

DEPUTY PRESIDENT HAMPTON

MELBOURNE, 15 DECEMBER 2023

Application to extend the 30 day period in relation to B2023/1167

This matter concerns the declaration of the result of a protected action ballot (PR767642) held in matter B2023/1167 and declared on 20 November 2023.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or Applicant) 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 CEPU contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

Anglo Coal (Moranbah North Management) Pty Ltd (Anglo Coal) 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 CEPU members employed by Anglo Coal be extended by a further 30 days.

This order will operate on and from 15 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and Anglo Coal (Moranbah North Management) Pty Ltd. The union had conducted a protected action ballot, declared on 20 November 2023, which authorised industrial action for a period of 30 days. CEPU subsequently applied to extend this period by a further 30 days, citing section 459(3) of the Fair Work Act 2009. Anglo Coal did not object to the application. The Commission was tasked with determining whether the union’s application met the statutory requirements for an extension and whether the extension should be granted.

The legal issues centred on whether the application complied with the provisions of section 459(3) of the Act. Specifically, the court had to ascertain whether the union had applied for an extension within the stipulated period and whether the 30-day period had already been extended. The union argued that the application met all the criteria, and thus, the extension should be granted. Anglo Coal did not oppose the application, which simplified the court's decision-making process.

The Deputy President of the Fair Work Commission, Hampton, found that the union’s application met all the statutory requirements for an extension. The union had applied within the permitted timeframe and had not previously extended the 30-day period. Given these facts, the court was satisfied that the application should be granted. Consequently, the 30-day period for the commencement of protected industrial action was extended by a further 30 days, commencing from 15 December 2023.

This decision ensures that the union's members will have an additional 30 days to commence their industrial action if required. The order was made on 15 December 2023, and it will be effective from that date.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established