Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Illawarra Coal Holdings Pty Ltd Summary

[2022] FWC 2139

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

Illawarra Coal Holdings Pty Ltd

(B2022/1202)

VICE PRESIDENT CATANZARITI

SYDNEY, 11 AUGUST 2022

Application to extend the 30 day period in relation to B2022/472

On 9 August 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, PR741907 made on 24 May 2022. The Order applies to certain employees of Illawarra Coal Holdings 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 6 July 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 4 August 2022.

On 10 August 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 expired at midnight on 4 August 2022, the extension period will operate from 4 August 2022.

An order has been separately issued in PR744713.

VICE 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 (the Union) applied to extend the 30-day period for protected industrial action as authorised by a ballot order. This application was made under section 459(3) of the Fair Work Act 2009, following the expiration of the initial 30-day period which had commenced with the declaration of the ballot results on 6 July 2022. The Union sought this extension in relation to employees of Illawarra Coal Holdings Pty Ltd (the Company), who had endorsed the proposed forms of protected action. The Company did not oppose the Union’s application.

The legal issue before the Commission was whether the Union's application to extend the 30-day period for protected industrial action was in accordance with section 459(3) of the Act. Specifically, the court needed to consider whether the Union had met the criteria for an extension and whether it was appropriate to grant the extension. Given that the initial 30-day period had already expired and there had been no previous extensions, the court had to examine the application based on the documentation provided.

The Commission, led by Vice President Catanzariti, concluded that the Union had fulfilled the requirements under section 459 of the Act. The Commission noted that the Union had not previously extended the 30-day period and that all necessary conditions were met for an extension. Consequently, the Commission granted the application, determining that a 30-day extension was appropriate. This extension was to operate from 4 August 2022, the date when the initial 30-day period had expired. The Commission issued a separate order in PR744713 to formalise this decision.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Illawarra Coal Holdings Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established