Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Tomago Aluminium Company Pty Limited

Case [2023] FWC 1180


[2023] FWC 1180

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

Tomago Aluminium Company Pty Limited

(B2023/470)

VICE PRESIDENT CATANZARITI

SYDNEY, 18 MAY 2023

Application to extend the 30 day period in relation to B2023/310

  1. On 17 May 2023, 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, PR760928 made on 5 April 2023. The Order applies to certain employees of Tomago Aluminium Company Pty Limited (the Respondent).

  1. The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 21 April 2023. 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 20 May 2023.

  1. On 17 May 2023, the Respondent neither consented nor objected 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. Accordingly, I have determined the matter on the basis of the documentation filed.

  1. 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.

  1. 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 20‎ ‎May‎ ‎2023, the extension period will operate from 20‎ ‎May‎ ‎2023.

  1. An order has been separately issued in PR762034.


VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR762035>

Details
AGLC
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Tomago Aluminium Company Pty Limited [2023] FWC 1180
Case
[2023] FWC 1180
Decision Date

CaseChat Overview and Summary

The Fair Work Commission considered an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) to extend the 30 day period for protected industrial action authorised by a protected action ballot order made on 5 April 2023. The Respondent, Tomago Aluminium Company Pty Limited, neither consented nor objected to the application. The issue before the Commission was whether the Applicant had met the requirements of section 459 of the Fair Work Act 2009 to extend the 30 day period for protected industrial action.

The Commission noted that the Applicant had fulfilled the requirements of section 459 of the Act, and that the period had not been previously extended. The Commission was satisfied that the extension was appropriate, and that the extension period would operate from 20 May 2023, the date on which the 30 day period would have otherwise expired. The Commission separately issued an order in PR762034, which provided for the extension of the 30 day period for protected industrial action.

This decision highlights the importance of meeting the requirements of section 459 of the Act in order to extend the 30 day period for protected industrial action. The Commission found that the Applicant had met these requirements, and that the extension was appropriate in the circumstances of this case. The decision also highlights the role of the Commission in overseeing protected industrial action, and its power to extend the 30 day period in appropriate cases.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

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