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

[2022] FWC 2653

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

Stowe Australia Pty Ltd

(B2022/1482)

VICE PRESIDENT CATANZARITI

SYDNEY, 30 SEPTEMBER 2022

Application to extend the 30 day period in relation to B2022/691

On 29 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, PR744169 made on 25 July 2022. The Order applies to certain employees of Stowe 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 31 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 expired at midnight on 29 September 2022.

On 30 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 29 September 2022, the extension period will operate from 29 September 2022.

An order has been separately issued in PR746420.

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 to extend the period for protected industrial action against Stowe Australia Pty Ltd. The application was brought under section 459(3) of the Fair Work Act 2009. The union had previously conducted a ballot which resulted in a majority endorsement for protected action. The initial 30-day period for taking such action was set to expire on 29 September 2022, but the union sought an extension. The employer, Stowe Australia Pty Ltd, did not oppose the extension.

The central legal issue before the Vice President was whether the conditions of section 459(3) of the Fair Work Act had been met to justify an extension of the 30-day period for protected action. This required consideration of the requirements set out in the Act and the evidence provided by the union in support of the extension. The union argued that the extension was necessary due to specific circumstances that warranted additional time for the industrial action. The employer did not contest the application, thereby simplifying the decision-making process for the Vice President.

In reaching the decision, the Vice President reviewed the provisions of section 459 of the Act and the circumstances of the case. Given that the union had complied with the requirements for conducting the ballot and that the employer did not oppose the extension, the Vice President found that the conditions for extending the 30-day period were satisfied. Consequently, the Commission granted the union's application for an extension, effective from 29 September 2022. This decision was documented in a separate order issued by the Commission.

The final orders of the Commission included an extension of the 30-day period for protected action, allowing the union additional time to organise the endorsed industrial action against Stowe Australia Pty Ltd. The extension was deemed appropriate based on the union's application and the lack of opposition from the employer.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established