Construction, Forestry, Maritime, Mining and Energy Union v City of Fremantle

[2020] FWC 5859

[2020] FWC 5859

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
City of Fremantle
(B2020/679)

DEPUTY PRESIDENT BINET PERTH, 6 NOVEMBER 2020

Application to extend the 30-day period in relation to B2020/455.

[1] On 2 November 2020, 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 21 August 2020 in PR722046 (Order).

[3] The Order applies to certain employees of the City of Fremantle.

[4] On 2 November 2020, the City of Fremantle was advised of the Application and 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 7 October 2020.

[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 6 November 2020.

[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 Act has been met and that a 30 day extension is appropriate. The period during which industrial action is authorised by the Order issued in B2020/455 [PR722046] on 21 August 2020 is therefore extended until Sunday 6 December 2020.

[11] An order to this effect will be issued in PR724192.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR724190>