Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Kogan Creek Power Pty Ltd T/A CS Energy Pty Ltd Summary

[2023] FWC 2647

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

Kogan Creek Power Pty Ltd T/A CS Energy Pty Ltd

(B2023/1076)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 11 OCTOBER 2023

Application to extend the 30 day period in relation to B2023/902

This matter concerns the declaration of the result of a protected action ballot (PR765733) held in matter B2023/902 and declared on 15 September 2023.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (CEPU or Applicant) 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.

Kogan Creek Power Pty Ltd trading as CS Energy Ptv Ltd (CS Energy) 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 CS Energy be extended by a further 30 days.

This order will operate on and from 11 October 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) to extend the 30-day period within which industrial action is authorised by a protected action ballot. The application was made in relation to the ballot PR765733, which had been declared on 15 September 2023. The application was brought under section 459(3) of the Fair Work Act 2009, which allows for an extension of the 30-day period if certain conditions are met. Kogan Creek Power Pty Ltd trading as CS Energy Pty Ltd (CS Energy) did not object to the application.

The legal issue before the Commission was whether the requirements for an extension of the 30-day period had been satisfied. The applicant needed to demonstrate that the period had not been previously extended and that the application was made by an applicant for the protected action ballot order. The Commission considered that the applicant had satisfied both conditions, and that there were no grounds to deny the extension.

In making its decision, the Commission noted that the 30-day period for the commencement of protected industrial action for eligible CEPU members employed by CS Energy would expire on 14 October 2023. The Commission found that the requirements for an extension had been met, and granted the application. The extension order will operate from 11 October 2023, extending the period for the commencement of protected industrial action to 14 November 2023.

Pursuant to section 459(3) of the Fair Work Act 2009, the Fair Work Commission orders that the 30-day period for the commencement of protected industrial action for eligible CEPU members employed by CS Energy be extended by a further 30 days, to 14 November 2023.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Kogan Creek Power Pty Ltd T/A CS Energy Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established