Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail Summary

[2023] FWC 1473

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
v

Queensland Rail

(B2023/622)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 21 JUNE 2023

Application to extend the 30 day period in relation to B2023/429.

This matter concerns the declaration of the result of a protected action ballot (PR761841) held in matter B2023/429 and declared on 26 May 2023.

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

Queensland Rail has advised the Commission it has no 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 Queensland Rail be extended by a further 30 days.

This order will operate on and from 21 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail involved an application by the CEPU to extend the 30-day period for industrial action authorised by a protected action ballot, as declared on 26 May 2023. The application was made under section 459(3) of the Fair Work Act 2009, which allows the Fair Work Commission to extend the 30-day period by up to 30 days if certain conditions are met. Queensland Rail did not object to the application, and the CEPU argued that the statutory requirements for an extension had been satisfied. The Deputy President of the Fair Work Commission was required to determine whether the conditions for an extension had been met and, if so, whether the application should be granted.

The Deputy President examined whether the CEPU had applied for the extension within the prescribed timeframe and whether the 30-day period had not been previously extended. The Deputy President concluded that both conditions were met, as the application was made within the required period and the 30-day period had not been extended previously. Therefore, the Deputy President was satisfied that the statutory requirements for an extension had been met, and the application should be granted. The Deputy President ordered that the 30-day period for the commencement of protected industrial action for eligible CEPU members employed by Queensland Rail be extended by a further 30 days, effective from 21 June 2023.

This decision confirms that the Fair Work Commission has the discretion to extend the 30-day period for industrial action authorised by a protected action ballot, provided that the statutory requirements are met. The decision also highlights the importance of timely applications for extensions and the need for unions to carefully consider the timing of their applications. The decision provides guidance to unions and employers on the process for seeking extensions of the 30-day period and the factors that the Fair Work Commission will consider in deciding whether to grant an extension. Overall, this decision is an important reminder of the role of the Fair Work Commission in regulating industrial relations and protecting the rights of both employers and employees.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established