Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Essity Holding Australia Pty Ltd

[2023] FWC 1434

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

Essity Holding Australia Pty Ltd

(B2023/581)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 19 JUNE 2023

Application to extend the 30 day period in relation to B2023/300

This matter concerns the declaration of the result of a protected action ballot (PR760757) held in matter B2023/300 and declared on 17 May 2023.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) 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.

Essity Holding Australia Pty Ltd has not advised the Commission it has any 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 Essity Holding Australia Pty Ltd be extended by a further 30 days.

This order will operate on and from 19 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) sought an extension to the 30-day period for protected industrial action authorised by a ballot held in relation to Essity Holding Australia Pty Ltd. Essity Holding Australia Pty Ltd did not object to the application. The Commission had to determine whether the application met the requirements set out in section 459(3) of the Fair Work Act 2009, which allows for an extension of the 30-day period if certain conditions are satisfied.

The legal issue before the Commission was whether the application met the statutory criteria for an extension. Specifically, the Commission needed to confirm that the applicant, CEPU, had applied for the extension and that the period had not been previously extended. Given that Essity Holding Australia Pty Ltd did not object, the Commission focused on verifying whether the statutory criteria were met.

The Deputy President found that the application met all the necessary requirements. The 30-day period had not been previously extended, and the application was made by the applicant, CEPU. Consequently, the Deputy President was satisfied that the application should be granted. The decision was based on the straightforward satisfaction of the statutory criteria, with no objections raised by Essity Holding Australia Pty Ltd.

Pursuant to section 459(3) of the Fair Work Act 2009, the Deputy President ordered that the 30-day period for the commencement of protected industrial action for eligible CEPU members employed by Essity Holding Australia Pty Ltd be extended by a further 30 days, effective from 19 June 2023. This decision allows the union to continue its industrial action for an additional month under the terms of the authorised ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established