Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v KDR Victoria Pty Ltd T/A Yarra Trams

[2023] FWC 2699

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

KDR Victoria Pty Ltd T/A Yarra Trams

(B2023/1101)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 17 OCTOBER 2023

Application to extend the 30 day period in relation to B2023/941

This matter concerns the declaration of the result of a protected action ballot (PR765914) held in matter B2023/941 and declared on 22 September 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.

KDR Victoria Pty Ltd T/A Yarra Trams (Yarra Trams) has not advised the Commission of 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 Yarra Trams be extended by a further 30 days.

This order will operate on and from 17 October 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was tasked with considering an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) to extend the 30-day period during which industrial action is authorised by a protected action ballot. This application was made under section 459(3) of the Fair Work Act 2009 in relation to a ballot (PR765914) that was held in matter B2023/941 and declared on 22 September 2023. The respondent, KDR Victoria Pty Ltd T/A Yarra Trams (Yarra Trams), did not object to the application. The Deputy President, Hampton, presided over the matter which was heard in Adelaide on 17 October 2023.

The central legal issue for the Commission was whether the application met the criteria set out in section 459(3) of the Act, which permits an extension of the 30-day period if the applicant for the protected action ballot order applies to the FWC and if the period has not previously been extended. The CEPU argued that all conditions were fulfilled and that the period should be extended by an additional 30 days. The Commission needed to determine whether the application was compliant with the legislative requirements and if it should be granted.

Upon reviewing the application, the Deputy President Hampton found that all the necessary conditions were satisfied. Specifically, the CEPU had indeed applied for the extension, and the 30-day period had not been previously extended. Given this, the Deputy President concluded that the application should be granted. As such, the 30-day period for the commencement of protected industrial action for eligible CEPU members employed by Yarra Trams was extended by a further 30 days, effective from 17 October 2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established