Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v South32 Worsley Alumina Pty Ltd

[2022] FWC 1716

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

South32 Worsley Alumina Pty Ltd

(B2022/628)

VICE PRESIDENT CATANZARITI

SYDNEY, 5 JULY 2022

Application to extend the 30 day period in relation to B2022/475

On 30 June 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, PR742056 made on 27 May 2022. The Order applies to certain employees of South32 Worsley Alumina 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 9 June 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 8 July 2022.

On 4 July 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 8 July 2022, the extension period will operate from 8 July 2022.

An order has been separately issued in PR743331.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to consider an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia to extend a 30 day period for protected industrial action authorised by a ballot order. The application was made in accordance with section 459(3) of the Fair Work Act 2009. The relevant employees, who are members of the union and employees of South32 Worsley Alumina Pty Ltd, had participated in a ballot which resulted in a majority endorsement of proposed forms of protected industrial action. The 30 day period for protected action was set to expire on 8 July 2022. The union sought an extension of this period, and South32 Worsley Alumina Pty Ltd did not oppose the application.

The legal issue before the Commission was whether the union's application met the requirements set out in section 459 of the Act for extending the 30 day period. The union argued that all conditions were satisfied and that an extension was appropriate. South32 Worsley Alumina Pty Ltd did not contest the application, leaving the Commission to determine the matter based on the documentation submitted.

The Commission found that the union's application met all the necessary criteria for extending the 30 day period. The union had complied with the requirements under section 459 of the Act, and this was the first extension of the period, which had not been previously extended. The Commission concluded that it was appropriate to grant the extension, which would take effect from 8 July 2022.

An order was subsequently issued in PR743331, granting the extension of the 30 day period for protected industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established