Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v OS ACPM Pty Ltd T/A BHP Operations Services

[2022] FWC 3248

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

OS ACPM Pty Ltd T/A BHP Operations Services

(B2022/1815)

VICE PRESIDENT CATANZARITI

SYDNEY, 9 DECEMBER 2022

Application to extend the 30 day period in relation to B2022/1603

On 7 December 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, PR747329 made on 31 October 2022. The Order applies to certain employees of OS ACPM Pty Ltd T/A BHP Operations Services (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 14 November 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 13 December 2022.

On 8 December 2022, the Respondent advised the Commission via email that it does not consent 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 but does not wish to be heard. 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 expires at midnight on 13 December 2022, the extension period will operate from 13 December 2022.

An order has been separately issued in PR748750.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought an extension of the 30-day period for protected action authorised by a ballot order, PR747329, made on 31 October 2022. This application was made to the Fair Work Commission under section 459(3) of the Fair Work Act 2009. The dispute involves certain employees of OS ACPM Pty Ltd T/A BHP Operations Services, who are represented by the union. The ballot, which concluded on 14 November 2022, resulted in a majority endorsement of the proposed forms of protected industrial action. The 30-day period for protected action, which began on the declaration of the ballot results, is set to expire on 13 December 2022.

The legal issues before the court centred on whether the union's application to extend the 30-day period for protected action was appropriate and met the requirements under section 459 of the Fair Work Act. Specifically, the court needed to determine if the union's application fulfilled the necessary criteria and if the period had already been extended previously. The Respondent, OS ACPM Pty Ltd, did not consent to the extension but chose not to be heard in the matter. The union argued that the extension was necessary to ensure fairness and proper implementation of the industrial action.

In considering the application, the court examined the provisions of section 459 of the Fair Work Act, which governs the extension of time for protected action. The court found that the union had met the requirements as the period had not been previously extended and the union had provided sufficient grounds for the extension. The court concluded that a 30-day extension was appropriate, taking into account the expiration date of the original period on 13 December 2022. Consequently, the court granted the extension, and an order was issued accordingly in PR748750.

The court's decision effectively extended the 30-day period for protected action from 13 December 2022, allowing the union to continue its industrial action as authorised by the ballot. This extension was granted based on the union's application and the absence of any opposition from the Respondent, OS ACPM Pty Ltd. The order ensures that the union's actions remain within the legal framework provided by the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established