Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v DM Roads Services Pty Ltd and Downer EDI Works Pty Ltd T/A DM Road Services Pty Ltd

[2023] FWC 2921

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

DM Roads Services Pty Ltd and Downer EDI Works Pty Ltd T/A DM Road Services Pty Ltd

(B2023/1221)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 9 NOVEMBER 2023

Application to extend the 30-day period in relation to B2023/837

This matter concerns the declaration of the result of a protected action ballot (PR765171) held in matter B2023/837 and declared on 9 October 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.

DM Roads Services Pty Ltd and Downer EDI Works Pty Ltd T/A DM Road Services Pty Ltd (DM Road Services) 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 s.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 DM Road Services be extended by a further 30 days.

This order will operate on and from 9 November 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) to extend the 30-day period within which industrial action can be taken under the authorisation of a protected action ballot. The application was in relation to a dispute between CEPU and DM Roads Services Pty Ltd and Downer EDI Works Pty Ltd, trading as DM Road Services Pty Ltd. The dispute centred around the authorisation period for protected industrial action following a ballot held and declared on 9 October 2023. The legal issue before the Commission was whether the 30-day period for commencing protected industrial action could be extended by an additional 30 days under section 459(3) of the Fair Work Act 2009.

The Commission considered whether the CEPU had met the statutory criteria for an extension, including that an application had been made to the Commission and that the period had not previously been extended. DM Road Services did not oppose the application. The Deputy President found that the CEPU had satisfied the conditions set out in the Act, and accordingly, the application should be granted. The Commission emphasised that the extension would only apply if the initial 30-day period had not been previously extended, which was confirmed to be the case here.

In light of the findings, the Deputy President ordered that the 30-day period for the commencement of protected industrial action by eligible CEPU members employed by DM Road Services be extended by a further 30 days. This order came into effect from 9 November 2023. The decision highlights the Commission's role in balancing the rights of unions to organise protected action with the need to provide a reasonable timeframe for resolution of industrial disputes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established