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

[2023] FWC 2700

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

(B2023/1100)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 17 OCTOBER 2023

Application to extend the 30 day period in relation to B2023/942

This matter concerns the declaration of the result of a protected action ballot (PR765932) held in matter B2023/942 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 (FWC) was called upon to determine 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, as outlined in section 459 of the Fair Work Act 2009. The application was made in relation to a protected action ballot (PR765932) that was declared on 22 September 2023, pertaining to industrial action against KDR Victoria Pty Ltd T/A Yarra Trams (Yarra Trams). The application was unopposed by Yarra Trams.

The primary legal issue before the FWC was whether the conditions stipulated in section 459(3) of the Act were satisfied to allow for an extension of the 30-day period. The CEPU argued that the application for an extension met the criteria set out in the Act, specifically that the extension had not previously been granted and that the application was made by the union that had applied for the protected action ballot order. The FWC needed to assess if the application met these statutory requirements and whether it was appropriate to grant the extension.

Upon reviewing the application and the relevant provisions of the Act, the Deputy President concluded that the conditions for an extension had indeed been fulfilled. The 30-day period had not been previously extended, and the application was made by the CEPU, who had also applied for the protected action ballot order. Given that there was no opposition from Yarra Trams, the Deputy President determined that the application should be granted. Therefore, the FWC ordered an extension of the 30-day period by an additional 30 days, effective from 17 October 2023.

In summary, the FWC granted the CEPU's application for an extension of the 30-day period during which industrial action is authorised by the protected action ballot. The order was made in accordance with section 459(3) of the Fair Work Act 2009, and it took effect from the date of the decision, 17 October 2023.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established