Construction, Forestry and Maritime Employees Union v BAE Systems Australia Limited T/A BAE Systems Australia Summary

[2023] FWC 3438

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

Construction, Forestry and Maritime Employees Union
v

BAE Systems Australia Limited T/A BAE Systems Australia

(B2023/1389)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 21 DECEMBER 2023

Application to extend the 30 day period in relation to B2023/1240

This matter concerns the declaration of the result of a protected action ballot (PR768275) held in matter B2023/1240 and declared on 7 December 2023.

The Construction, Forestry, Mining and Energy Union (CFMEU) 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 CFMEU contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

BAE Systems Australia Limited T/a Bae Systems Australia (BAE) 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 CFMEU members employed by BAE be extended by a further 30 days.

This order will operate on and from 21 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) filed an application with the Fair Work Commission (FWC) to extend the 30-day period for initiating industrial action authorised by a protected action ballot. This application relates to a previous matter, B2023/1240, where the CFMEU sought a protected action ballot (PR768275), which was declared on 7 December 2023. BAE Systems Australia Limited T/A BAE Systems Australia did not oppose the application. The legal issue before the Deputy President was whether the conditions set out in section 459(3) of the Fair Work Act 2009 (Act) had been satisfied to justify extending the 30-day period for protected industrial action. Section 459(3) allows for an extension if the applicant for the protected action ballot order applies to the FWC for an extension and the period has not previously been extended. The Deputy President concluded that all conditions were met and granted the extension.

The Deputy President examined whether the application complied with the statutory requirements outlined in section 459(3) of the Act. This included verifying that the application was made by the applicant for the protected action ballot order and that the 30-day period had not been extended previously. The Deputy President found that the CFMEU had met both conditions, as the application was indeed made by the relevant applicant and there had been no prior extension of the 30-day period. The absence of any objection from BAE Systems Australia further supported the application. The Deputy President concluded that the application should be granted based on the satisfaction of the statutory criteria.

Consequently, the Deputy President ordered the extension of the 30-day period for initiating protected industrial action for eligible CFMEU members employed by BAE Systems Australia. The extension was granted pursuant to section 459(3) of the Act, effective from 21 December 2023. This decision allows an additional 30 days for the commencement of protected industrial action, providing a total of 60 days from the date of the protected action ballot declaration.

Construction, Forestry and Maritime Employees Union v BAE Systems Australia Limited T/A BAE Systems Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established