Construction, Forestry, Maritime, Mining and Energy Union v ABC Paper and Paper Mill Pty Limited

[2022] FWC 109

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

ABC Paper and Paper Mill Pty Limited

(B2022/25)

VICE PRESIDENT CATANZARITI

SYDNEY, 21 JANUARY 2022

Application to extend the 30 day period in relation to B2021/932

On 19 January 2022, the Construction, Forestry, Maritime, Mining and Energy Union (Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.459(3) of the Fair Work Act 2009 (Cth) (the Act) to extend the 30 day period for protected action authorised by a protected action ballot order, PR734473 made on 1 October 2021. The Order applies to certain employees of ABC Paper and Paper Mill Pty Limited (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 23 December 2021. Pursuant to s.459(1)(d)(i) of the 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 21 January 2022.

On 19 January 2022, the Respondent advised the Commission via email that it does not oppose the Construction, Forestry, Maritime, Mining and Energy Union’s application to extend the 30 day period for protected industrial action. Accordingly, I have determined the matter on the basis of the documentation filed.

In addressing s.459(3) of the Act, this application is made by the Construction, Forestry, Maritime, Mining and Energy Union who is the Applicant for which the protected action ballot order was issued. Furthermore, the period specified in s.459(1)(d)(i) has not been previously extended.

On that basis and on the material before me, I am satisfied that each of the relevant requirements of s.459 of the Act have been met and that a 30 day extension is appropriate. As the 30 day period expires at midnight on 21 January 2022, the extension period will operate from 21 January 2022.

An order has been separately issued in PR737664.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied for an extension to the 30 day period for protected action that had been authorised by a ballot order issued on 1 October 2021. The ballot related to certain employees of ABC Paper and Paper Mill Pty Limited. The CFMMEU applied for an extension on 19 January 2022, the day before the 30 day period was due to expire. ABC Paper and Paper Mill Pty Limited did not oppose the application, and the matter was determined on the basis of the documentation filed.

The key legal issue before the Commission was whether the CFMMEU had satisfied the requirements of section 459(3) of the Fair Work Act 2009 to extend the 30 day period for protected action. The CFMMEU argued that an extension was appropriate and necessary to allow them to properly organise and undertake the protected industrial action. The Commission considered the statutory provisions and the evidence before it in determining whether to grant the extension.

The Vice President of the Commission was satisfied that the CFMMEU had met all the relevant requirements under section 459 of the Act to extend the 30 day period. The period specified in section 459(1)(d)(i) had not been previously extended, and the CFMMEU had made the application within the required timeframe. The Vice President accepted that a 30 day extension was appropriate to allow the CFMMEU to organise and undertake the protected industrial action. Accordingly, the application to extend the 30 day period was approved. The extension period commenced from 21 January 2022.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established