Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Knorr-Bremse Australia Pty Limited

[2022] FWC 2197

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

Knorr-Bremse Australia Pty Limited

(B2022/1227)

VICE PRESIDENT CATANZARITI

SYDNEY, 18 AUGUST 2022

Application to extend the 30 day period in relation to B2022/476

On 15 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, PR742020 made on 6 June 2022. The Order applies to certain employees of Knorr-Bremse Australia Pty Limited (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 13 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 11 August 2022.

The Respondent neither consented nor objected to 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 11 August 2022, the extension period will operate from 11 August 2022.

An order has been separately issued in PR744933.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, seeking to extend the 30-day period for protected action that had been authorised by a protected action ballot order. The order, PR742020, applied to certain employees of Knorr-Bremse Australia Pty Limited. The union’s application was pursuant to section 459(3) of the Fair Work Act 2009 and was made after the expiration of the original 30-day period. The union argued that the extension was necessary and appropriate given the circumstances of the case. The employer, Knorr-Bremse Australia Pty Limited, did not object to the application.

The primary legal issue before the Commission was whether the application to extend the 30-day period for protected action complied with the requirements of section 459 of the Fair Work Act 2009. The Commission had to determine if the union met the criteria for an extension and whether such an extension was justified under the circumstances. The union argued that the extension was necessary to achieve the objectives of the protected action and that there were valid reasons for the delay. The Commission reviewed the union’s application and the relevant provisions of the Act to assess if the union’s request met the legislative requirements and was justified.

In its decision, the Fair Work Commission found that the union had satisfied the criteria set out in section 459 of the Act for extending the 30-day period for protected action. The Commission noted that the union had provided sufficient justification for the delay and that all relevant requirements of the Act had been met. Consequently, the Commission granted the union’s application and extended the period for protected action. The extension was set to commence from the date the original 30-day period expired, thereby providing the union with an additional 30 days to undertake the authorised protected action.

The Fair Work Commission issued an order separately numbered PR744933, which granted the union’s application for an extension of the 30-day period for protected action. The extended period was to operate from 11 August 2022, the date on which the original 30-day period expired.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established