Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v BAE Systems Australia Limited T/A BAE Systems Australia

[2023] FWC 3118

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

BAE Systems Australia Limited T/A BAE Systems Australia

(B2023/1287)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 27 NOVEMBER 2023

Application to extend the 30 day period in relation to B2023/1123

This matter concerns the declaration of the result of a protected action ballot (PR767451) held in matter B2023/1123 and declared on 13 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.

BAE Systems Australia Limited T/A BAE Systems Australia (BAE) 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 CEPU members employed by BAE be extended by a further 30 days.

This order will operate on and from 27 November 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) considered an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) to extend the 30-day period during which industrial action is authorised following a protected action ballot. The dispute arose from a ballot (PR767451) declared on 13 November 2023, concerning employees of BAE Systems Australia Limited T/A BAE Systems Australia. The application sought an extension under section 459(3) of the Fair Work Act 2009, which permits the FWC to extend the initial 30-day period if specific conditions are met. These include the applicant applying for an extension and that the period has not been previously extended.

The key legal issue before the FWC was whether the conditions stipulated in section 459(3) of the Fair Work Act were satisfied. The CEPU argued that the conditions were met, while BAE Systems expressed no objection to the application. The FWC found that the CEPU had complied with the statutory requirements and that there were no impediments to granting the extension. The decision hinged on the interpretation of the legislative provisions and the straightforward compliance with these conditions by the CEPU.

The FWC determined that the statutory conditions were met, and accordingly, granted the extension of the 30-day period for the commencement of protected industrial action for eligible CEPU members employed by BAE Systems. The decision was based on the absence of any objections from BAE Systems and the clear compliance by the CEPU with the statutory requirements. The extension order was made to commence from 27 November 2023, thereby allowing the authorised industrial action to proceed for an additional 30 days beyond the initial period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established