Construction, Forestry and Maritime Employees Union v Viterra Operations Pty Limited T/A Viterra Summary

[2024] FWC 691

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

Viterra Operations Pty Limited T/A Viterra

(B2024/190)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 18 MARCH 2024

Application to extend the 30 day period in relation to B2024/48

This matter concerns the declaration of the result of a protected action ballot (PR770564) held in matter B2024/48 and declared on 6 February 2024.

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

Viterra Operations Pty Limited T/A Viterra (Viterra) has advised the Commission it does not object 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 Viterra be extended by a further 30 days.

This order will operate on and from 18 March 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFMEU) applied to the Fair Work Commission (FWC) to extend the 30-day period in which industrial action is authorised by a protected action ballot. The dispute was in relation to a protected action ballot (PR770564) held in matter B2024/48, declared on 6 February 2024. The applicant sought an extension under section 459(3) of the Fair Work Act 2009, which permits an extension of up to 30 days if the applicant meets certain conditions and the period has not been previously extended. Viterra Operations Pty Limited, the employer, did not oppose the application. The Deputy President of the FWC was satisfied that the statutory requirements for an extension had been met.

The primary legal issue the FWC had to decide was whether the statutory criteria for extending the 30-day period under section 459(3) of the Act had been fulfilled. This involved examining whether the application was made by the applicant for the protected action ballot order and whether the 30-day period had not already been extended previously. Given that the CFMEU had applied for the extension and the period had not been extended before, the Deputy President concluded that the application met the statutory requirements. Consequently, the question became whether the extension should be granted, considering the absence of opposition from Viterra.

The Deputy President determined that the statutory criteria for an extension had indeed been satisfied. Given that Viterra did not oppose the application, the Deputy President found it appropriate to grant the extension. The reasoning was based on the fact that the applicant had complied with the statutory requirements and the employer did not object to the extension. Therefore, the Deputy President ordered that the 30-day period for the commencement of protected industrial action for eligible CFMEU members employed by Viterra be extended by a further 30 days. This order came into effect on 18 March 2024.

Construction, Forestry and Maritime Employees Union v Viterra Operations Pty Limited T/A Viterra

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established