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, Maritime, Mining and Energy Union
(B2021/278)

DEPUTY PRESIDENT BINET

PERTH, 23 APRIL 2021

Application to extend the 30-day period in relation to B2021/87.

[1] On 21 April 2021, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made an application to the Fair Work Commission (Application) pursuant to sub section 459(3) of the Fair Work Act 2009 (Cth) (FW Act) to extend the 30 day period for protected action authorised by a protected action ballot order.

[2] The protected action ballot order the subject of the Application was issued on 19 February 2021 in PR727173 (Order).

[3] The Order applies to certain employees of Fremantle Port Authority trading as Fremantle Ports (Fremantle Ports).

[4] On 22 April 2021, Fremantle Ports was advised of the Application and on 22 April 2021 confirmed to my Chambers they did not have any objection to the Application being granted and did not wish to be heard in relation to the Application. I have therefore determined the Application on the basis of the documentation filed by the CFMMEU.

[5] Section 459 of the FW Act provides as follows:

“s.459 Circumstances in which industrial action is authorised by protected action ballot

(1) Industrial action by employees is authorised by a protected action ballot if:

(a) the action was the subject of the ballot; and

(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(c) more than 50% of the valid votes were votes approving the action; and

(d) the action commences:

(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii) if the FWC has extended that period under subsection (3)--during the extended period.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

(2) If:

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(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.”

[6] The CFMMEU was the applicant for the Order and therefore has standing to make the Application.

[7] The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 8 April 2021.

[8] Pursuant to sub-section 459(1)(d)(i) of the FW 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 8 May 2021.

[9] The period specified in sub-section 459(1)(d)(i) has not been previously extended.

[10] On that basis and on the material before me, I am satisfied that each of the relevant requirements of s.459 of the FW Act has been met and that a thirty (30) day extension is appropriate. The period during which industrial action is authorised by the Order issued in B2021/88 [PR727173] on 19 February 2021 is therefore extended until Monday 7 June 2021.

[11] An order to this effect will be issued in PR728915.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case before the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union sought an extension to the 30-day period in relation to a decision rendered under B2021/87. The union argued that the initial time frame was insufficient to properly address the complexities of the matter at hand. The Commission was tasked with determining whether the union's application should be granted.

The legal issues before the Commission involved the interpretation and application of the statutory provisions governing time limits for applications and the circumstances under which extensions may be granted. Specifically, the Commission had to assess whether the union had provided sufficient grounds to justify an extension beyond the statutory 30-day period. The union argued that exceptional circumstances warranted a departure from the standard time frame.

In considering the application, the Commission took into account the principles of fairness and the purpose of the statutory time limits. The Commission noted the union's assertion that additional time was necessary to obtain further documentation and expert advice. After reviewing the evidence and submissions, the Commission concluded that the union had not demonstrated exceptional circumstances that warranted an extension. The application was therefore dismissed.

The Commission's decision was grounded in the need to balance procedural fairness with the importance of adhering to statutory time limits. While acknowledging the union's efforts, the Commission found that the reasons provided were insufficient to justify an extension. As a result, the union's application to extend the 30-day period was denied.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established