Construction, Forestry, Maritime, Mining and Energy Union v CSL Australia Pty Ltd T/A CSL Shipping Summary

[2023] FWC 3122

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

CSL Australia Pty Ltd T/A CSL Shipping

(B2023/1284)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 27 NOVEMBER 2023

Application to extend the 30 day period in relation to B2023/1166

This matter concerns the declaration of the result of a protected action ballot (PR767686) held in matter B2023/1166 and declared on 15 November 2023.

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

CSL Australia Pty Ltd T/A CSL Shipping (CSL) 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 CSL be extended by a further 30 days.

This order will operate on and from 27 November 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied to extend the 30-day period for protected industrial action authorised by a ballot held in relation to CSL Australia Pty Ltd, trading as CSL Shipping. The dispute concerns the interpretation and application of section 459(3) of the Fair Work Act 2009, which allows for the extension of the 30-day period under certain conditions. CSL did not oppose the application. The court was required to determine whether the requirements for extending the 30-day period had been met and, if so, whether the application should be granted.

The court considered the provisions of section 459(3) of the Act, which stipulates that the 30-day period may be extended if the applicant for the protected action ballot order applies to the Fair Work Commission and if the period has not previously been extended. The CFMMEU argued that both conditions were satisfied, and thus, the extension should be granted. CSL did not raise any objections to the application. The court found that the requirements were met and granted the application accordingly.

The Deputy President of the Fair Work Commission, Hampton, concluded that the application met the statutory requirements for an extension under section 459(3) of the Act. The court accepted that the application was made by the appropriate party and that the 30-day period had not been previously extended. The court granted the application and ordered that the 30-day period for the commencement of protected industrial action for eligible CFMMEU members employed by CSL be extended by a further 30 days, effective from 27 November 2023. This decision allows the CFMMEU to proceed with the planned industrial action within the extended timeframe.

Construction, Forestry, Maritime, Mining and Energy Union v CSL Australia Pty Ltd T/A CSL Shipping

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established