Construction, Forestry, Maritime, Mining and Energy Union v Atlas Programmed Marine Pty Ltd T/A Atlas Professionals

[2023] FWC 1941

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, Maritime, Mining and Energy Union
v

Atlas Programmed Marine Pty Ltd T/A Atlas Professionals

(B2023/801)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 4 AUGUST 2023

Application to extend the 30 day period in relation to B2023/647

This matter concerns the declaration of the result of a protected action ballot (PR763629) held in matter B2023/647and declared on 18 July 2023.

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

Atlas Programmed Marine Pty Ltd T/A Atlas Professionals 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 CFMMEU members employed by Atlas Programmed Marine Pty Ltd T/A Atlas Professionals be extended by a further 30 days.

This order will operate on and from 4 August 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has granted an application to extend the 30-day period for the commencement of industrial action authorised by a protected action ballot. The matter involves the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) seeking an extension to the period for taking industrial action against Atlas Programmed Marine Pty Ltd T/A Atlas Professionals, following the authorisation of the action by the protected action ballot. The application was made under section 459(3) of the Fair Work Act 2009. The company did not object to the application.

The central legal issue for the Commission to decide was whether the requirements of the Fair Work Act had been satisfied for the extension of the period for the commencement of industrial action. The Act permits the extension of the period by up to 30 days if the applicant for the protected action ballot order applies to the Commission for the extension and if the period has not previously been extended. The CFMMEU argued that both requirements were met and that the period should be extended by a further 30 days. The Commission found that the requirements had been met and granted the application.

The Commission's reasoning was that the application was made by the CFMMEU, who were the applicants for the protected action ballot order, and that the 30-day period had not previously been extended. The company did not object to the application. Therefore, the Commission was satisfied that the application should be granted. The Commission ordered that the 30-day period for the commencement of protected industrial action be extended by a further 30 days from 4 August 2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established