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

[2023] FWC 68

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

Downer EDI Engineering Electrical Pty Ltd

(B2023/17)

VICE PRESIDENT CATANZARITI

SYDNEY, 11 JANUARY 2023

Application to extend the 30 day period in relation to B2022/1655

On 10 January 2023, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (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, PR747651 made on 4 November 2022. The Order applies to certain employees of Downer EDI Engineering Electrical Pty Ltd (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 12 December 2022. 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 expires at midnight on 11 January 2023.

On 10 January 2023, the Respondent advised the Commission via email that it does not oppose the Applicant’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.

In addressing s.459(3) of the Act, this application is made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 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.

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 expires at midnight on 11 January 2023, the extension period will operate from 11 January 2023.

An order has been separately issued in PR749540.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia versus Downer EDI Engineering Electrical Pty Ltd involved an application to extend the 30-day period for protected industrial action. The applicant union had previously conducted a ballot under the Fair Work Act 2009, which authorised protected action. The 30-day period for this action was set to expire on 11 January 2023. The union applied for an extension of this period to the Fair Work Commission, which was not opposed by the respondent company. The central issue before the Vice President was whether the conditions set out in section 459 of the Act were met to allow for such an extension.

The court considered the specific provisions of section 459 of the Fair Work Act 2009, which governs the extension of periods for protected action. The union had satisfied the prerequisites for making such an application, including the fact that the specified 30-day period had not been extended previously. The union had also acted within the timeframe stipulated by the Act. Given the absence of opposition from the respondent and the compliance with statutory requirements, the court found that the extension was warranted. Consequently, the 30-day period for the protected action was extended from 11 January 2023.

In conclusion, the Fair Work Commission granted the union's application for an extension of the 30-day period for protected action. The extension was made effective from 11 January 2023, thereby allowing the union to continue with the authorised industrial action. The decision was made based on the compliance with the legal requirements and the absence of any opposition from the respondent company. An order reflecting this decision was issued under reference PR749540.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established