Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Dynamic Electrical Constructions Pty Limited T/A Dynelec (Australia)

[2023] FWC 384

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

Dynamic Electrical Constructions Pty Limited T/A Dynelec (Australia)

(B2023/109)

VICE PRESIDENT CATANZARITI

MELBOURNE, 15 FEBRUARY 2023

Application to extend the 30 day period in relation to B2022/1696

On 14 February 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, PR747856 made on 11 November 2022. The Order applies to certain employees of Dynamic Electrical Constructions Pty Limited T/A Dynelec (Australia) (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 4 January 2023. 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 expired at midnight on 2 February 2023.

On 14 February 2023, the Respondent advised the Commission via email that it does not oppose the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia’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 expired at midnight on 2‎ ‎February‎ ‎2023, the extension period will operate from 2‎ ‎February‎ ‎2023.

An order has been separately issued in PR750640.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to consider an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) to extend the 30-day period for protected industrial action authorised by a ballot order. The protected action in question was directed at employees of Dynamic Electrical Constructions Pty Limited T/A Dynelec (Australia), the respondent. The 30-day period for protected action was set to expire on 2 February 2023, but the Union sought an extension. The application was made under section 459(3) of the Fair Work Act 2009, and the Commission needed to determine whether the Union met the requirements to extend the period. The Union argued that the extension was appropriate given the circumstances, and the respondent did not oppose the application. The central issue for the Commission was whether the Union had met the statutory criteria for extending the 30-day period.

The Fair Work Commission assessed the application based on the documentation provided and the statutory criteria under section 459(3) of the Fair Work Act. The Commission noted that the 30-day period had not been extended previously and that the Union had met the requirements for such an extension. The Commission found that the Union had satisfied all the relevant criteria for extending the 30-day period for protected industrial action. Consequently, the Commission determined that a 30-day extension was appropriate, effective from the date the original 30-day period expired, 2 February 2023.

The Fair Work Commission granted the Union's application for an extension of the 30-day period for protected industrial action. The extension would allow the Union to continue its industrial action beyond the original 30-day limit. This decision was made in light of the Union meeting the statutory requirements and the respondent's lack of opposition. The Commission's decision was recorded in an order issued separately in PR750640.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established