Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v BCS Infrastructure Support Pty Limited

[2023] FWC 2515

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

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

BCS Infrastructure Support Pty Limited

(B2023/1032)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 3 OCTOBER 2023

Application to extend the 30 day period in relation to B2023/720

This matter concerns the declaration of the result of a protected action ballot (PR764351) held in matter B2023/720 and declared on 30 August 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.

BCS Infrastructure Support Pty Limited has advised the Commission it does not object 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 BCS Infrastructure Support Pty Limited be extended by a further 30 days.

This order will operate on and from 3 October 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v BCS Infrastructure Support Pty Limited, the Fair Work Commission was asked to consider an application by the CEPU to extend the authorised period for industrial action under a protected action ballot. The dispute centred on the 30-day period within which industrial action could be authorised by a ballot held on 30 August 2023. The CEPU applied under section 459(3) of the Fair Work Act 2009 to extend this period by an additional 30 days. BCS Infrastructure Support Pty Limited did not oppose the application.

The primary legal issue before the Fair Work Commission was whether the application met the criteria outlined in section 459(3) of the Fair Work Act 2009, specifically if the applicant had applied for the extension and if the period had not previously been extended. The CEPU argued that both conditions were satisfied. The Commission found that the CEPU's application was compliant with the statutory requirements and that the 30-day period had not been extended previously.

The Deputy President of the Fair Work Commission, Hampton, concluded that the statutory requirements for an extension had been met. The application was granted, and the 30-day period for the commencement of protected industrial action was extended by a further 30 days, effective from 3 October 2023. This decision allows eligible CEPU members employed by BCS Infrastructure Support Pty Limited to engage in industrial action for an additional month beyond the initial authorisation period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established