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

[2023] FWC 1616

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

Ventia Australia Pty Ltd

(B2023/670)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 3 JULY 2023

Application to extend the 30 day period in relation to B2023/384

This matter concerns the declaration of the result of a protected action ballot (PR761516) held in matter B2023/384 and declared on 7 June 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.

Ventia Australia Pty Ltd 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 Ventia Australia Pty Ltd be extended by a further 30 days.

This order will operate on and from 3 July 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) applied for an extension to the 30-day period within which industrial action could be taken, as authorised by a protected action ballot. The application was made against Ventia Australia Pty Ltd and followed the declaration of a protected action ballot (PR761516) in matter B2023/384, which was declared on 7 June 2023. The applicant sought an extension pursuant to section 459(3) of the Fair Work Act 2009. Ventia Australia Pty Ltd did not object to the application.

The key legal issue for the Commission to determine was whether the requirements for an extension of the 30-day period under section 459(3) of the Act had been met. The applicant needed to demonstrate that an application for the extension had been made to the FWC and that the period had not previously been extended. The Commission needed to be satisfied that the requirements of the Act had been met before granting the application.

After considering the application and the evidence presented, the Deputy President concluded that the requirements of the Act had been satisfied. The applicant had applied to the FWC for the extension and had not previously extended the period. The Deputy President therefore granted the application, ordering that the 30-day period for the commencement of protected industrial action for eligible CEPU members employed by Ventia Australia Pty Ltd be extended by a further 30 days. The order came into effect on 3 July 2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established