Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v KONE Elevators Pty Ltd

[2022] FWC 2376

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

KONE Elevators Pty Ltd

(B2022/1331)

VICE PRESIDENT CATANZARITI

SYDNEY, 6 SEPTEMBER 2022

Application to extend the 30 day period in relation to B2022/610

On 5 September 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, PR743121 made on 28 June 2022. The Order applies to certain employees of KONE Elevators 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 3 August 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 expires at midnight on 1 September 2022.

On 5 September 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 1 September 2022, the extension period will operate from 1 September 2022.

An order has been separately issued in PR745565.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide on an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia for an extension of the 30-day period during which certain employees of KONE Elevators Pty Ltd could take protected industrial action. The application was made under section 459(3) of the Fair Work Act 2009, following a protected action ballot order that was issued on 28 June 2022. The ballot, which took place and resulted in the majority of relevant employees endorsing the proposed forms of protected action, was declared on 3 August 2022. Consequently, the 30-day period for protected action began on 3 August 2022 and was set to expire on 1 September 2022. The applicant sought an extension of this period, and the employer did not oppose the application.

The legal issues before the Commission involved determining whether the applicant met the requirements for an extension under section 459(3) of the Act. The key considerations were whether the extension application was made by the applicant union, and whether the specified period had already been extended. The Commission found that the application was indeed made by the union and that the 30-day period had not been extended previously. Therefore, the Commission was satisfied that the statutory criteria for an extension were met.

In its decision, the Commission noted that the 30-day period for protected action had already expired at midnight on 1 September 2022. Consequently, the extension period would commence from 1 September 2022, effectively granting the union an additional 30 days to proceed with the protected industrial action. The Commission issued a separate order in PR745565 to formalise this decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established