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

[2023] FWC 1422

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

ICS Industries Pty Ltd

(B2023/582)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 16 JUNE 2023

Application to extend the 30 day period in relation to B2023/316

This matter concerns the declaration of the result of a protected action ballot (PR760923) held in matter B2023/316 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.

ICS Industries Pty Ltd has advised the Commission it has no 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 ICS Industries Pty Ltd be extended by a further 30 days.

This order will operate on and from 16 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) sought an extension of the 30-day period during which industrial action is authorised by a protected action ballot in relation to ICS Industries Pty Ltd. The Fair Work Commission, under the Fair Work Act 2009, was asked to decide whether the application for an extension should be granted. The company, ICS Industries Pty Ltd, indicated that it had no objections to the application.

The central legal issue before the Commission was whether the conditions specified in section 459(3) of the Fair Work Act had been satisfied. Specifically, the Commission needed to determine if the applicant (CEPU) had applied for an extension, and if the period in question had not already been extended previously. The applicant argued that all the criteria for an extension were met and that the period should be extended by a further 30 days.

The Deputy President of the Fair Work Commission, Hampton, found that the requirements of the Act had indeed been met. Given that ICS Industries Pty Ltd had no objections, the Commission was satisfied that the extension should be granted. The Deputy President concluded that the application should be approved and ordered that the 30-day period for protected industrial action be extended by a further 30 days, effective from 16 June 2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established