Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Harvey Fresh (1994) Ltd

[2022] FWC 2561

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

Harvey Fresh (1994) Ltd

(B2022/1407)

VICE PRESIDENT CATANZARITI

SYDNEY, 23 SEPTEMBER 2022

Application to extend the 30 day period in relation to B2022/1166

On 16 September 2022, 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, PR744485 made on 3 August 2022. The Order applies to certain employees of Harvey Fresh (1994) 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 18 August 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 expired at midnight on 16 September 2022.

On 19 September 2022, 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 expires at midnight on 16 September 2022, the extension period will operate from 16 September 2022.

An order has been separately issued in PR746151.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide whether to extend a 30-day period for protected industrial action. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia applied to the Commission to extend the time limit for taking protected action. The application was made pursuant to section 459(3) of the Fair Work Act 2009 (Cth). The union was seeking an extension of the period for taking protected action authorised by a ballot order. The protected action ballot order was made on 3 August 2022, and the ballot result was declared on 18 August 2022. The 30-day period for protected action expired on 16 September 2022. The employer did not oppose the union's application to extend the 30-day period.

The Commission was required to determine whether the union's application satisfied the requirements of section 459 of the Act and whether the extension was appropriate. The Commission found that the union's application met the requirements of the Act and that the extension was appropriate. The Commission also noted that the 30-day period for protected action had not been previously extended. The Commission concluded that the extension period would operate from 16 September 2022.

The Fair Work Commission determined that the union's application to extend the 30-day period for protected action was appropriate and granted the extension. The Commission found that the union's application met the requirements of section 459 of the Act. The Commission also noted that the employer did not oppose the application. The extension period will operate from 16 September 2022, the day the 30-day period for protected action expired. The Commission's decision was made on the basis of the documentation filed and the fact that the extension period had not been previously extended. An order has been separately issued in PR746151.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established