Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Ventia Utility Services Pty Limited and Downer Utilities Australia Pty Ltd T/A Downer Ventia...

[2023] FWC 3382

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

Ventia Utility Services Pty Limited And Downer Utilities Australia Pty Ltd T/A Downer Ventia Joint Venture

(B2023/1374)

DEPUTY PRESIDENT HAMPTON

SYDNEY, 18 DECEMBER 2023

Application to extend the 30 day period in relation to B2023/1198

This matter concerns the declaration of the result of a protected action ballot (PR767820) held in matter B2023/1198 and declared on 16 November 2023.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or Applicant) 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 Utility Services Pty Limited and Downer Utilities Australia Pty Ltd (Ventia Downer) has not advised the Commission of any 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 Downer be extended by a further 30 days.

This order will operate on and from 18 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) to extend the 30-day period for industrial action authorised by a protected action ballot. The application was made under section 459(3) of the Fair Work Act 2009. The respondents, Ventia Utility Services Pty Limited and Downer Utilities Australia Pty Ltd, trading as Downer Ventia Joint Venture, did not object to the application. The dispute centred on the interpretation and application of the statutory provisions governing protected action ballots and the circumstances under which the Commission might extend the period for protected industrial action.

The primary legal issue before the Deputy President was whether the conditions stipulated in section 459(3) of the Fair Work Act had been satisfied. Specifically, the court needed to determine whether the application for an extension was made by the relevant party, and whether the period had already been extended previously. The Deputy President concluded that the application met both criteria, thereby justifying the extension of the 30-day period for protected industrial action. The absence of objection from the respondents further supported the granting of the application.

The Deputy President found that the statutory requirements for an extension of the protected action ballot period were met, and granted the application by extending the 30-day period for protected industrial action by a further 30 days. This decision was based on the clear stipulations of the Act and the lack of opposition from the respondents. The order effectively extended the authorisation for industrial action from the original 30-day period to a total of 60 days.

This order extends the authorisation for protected industrial action by CEPU members employed by Ventia Downer Joint Venture from the original 30-day period to a total of 60 days, effective from 18 December 2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established