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

[2022] FWC 1022

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

Progress Rail Australia Pty Ltd

(B2022/374)

VICE PRESIDENT CATANZARITI

SYDNEY, 4 MAY 2022

Application to extend the 30 day period in relation to B2022/92

On 2 May 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, PR738641 made on 23 February 2022. The Order applies to certain employees of Progress Rail Australia 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 6 April 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 5 May 2022.

On 2 May 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 expires at midnight on 5 May 2022, the extension period will operate from 5 May 2022.

An order has been separately issued in PR741203.

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 industrial action from the Fair Work Commission. The union, acting on behalf of certain employees of Progress Rail Australia Pty Ltd, sought this extension in relation to an industrial action ballot previously authorised by the Commission. The ballot, which sought authorisation for protected action, was declared on 6 April 2022, and the 30-day period for the action was set to expire on 5 May 2022. The union filed the application to extend this period on 2 May 2022, and the respondent, Progress Rail Australia Pty Ltd, did not oppose the application.

The primary legal issue before the Commission was whether the union's application met the statutory requirements to extend the 30-day period for protected action as outlined in s. 459(3) of the Fair Work Act 2009. The Commission needed to consider whether the union, as the applicant, had met the conditions specified in the Act for such an extension, particularly in light of the fact that the period had not previously been extended. The Commission also had to ensure that the extension was appropriate and necessary in the circumstances.

In making its decision, the Fair Work Commission considered the application and the materials provided by the union. It noted that the union had satisfied the requirements of the Act, including the need for the extension and the absence of any previous extension of the period. Given that the respondent did not oppose the application, the Commission concluded that the extension was appropriate. The Commission decided that the 30-day period would be extended from 5 May 2022, thereby allowing the union to continue with the authorised protected action.

The Fair Work Commission issued an order to extend the 30-day period for protected action, thereby allowing the union to proceed with the authorised industrial action. This decision was based on the union's application and the absence of opposition from the respondent. The extension was deemed appropriate, and the period was extended from 5 May 2022. The Commission's decision was made under the authority of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established