Construction, Forestry, Maritime, Mining and Energy Union v DOF Management Australia Pty Ltd

[2023] FWC 498

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

DOF Management Australia Pty Ltd

(B2023/151)

VICE PRESIDENT CATANZARITI

SYDNEY, 28 FEBRUARY 2023

Application to extend the 30 day period in relation to B2023/16

On 21 February 2023, 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, PR749564 made on 11 January 2023. The Order applies to certain employees of DOF Management Australia Pty Ltd (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 9 February 2023. 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 10 March 2023.

On 22 February 2023, 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 10‎ ‎March‎ ‎2023, the extension period will operate from 10‎ ‎March‎ ‎2023.

An order has been separately issued in PR751259.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide whether to extend a 30-day period for protected action under the Fair Work Act 2009. The Construction, Forestry, Maritime, Mining and Energy Union (the Applicant) had applied for an extension of the period authorised by a protected action ballot order made on 11 January 2023, which applied to certain employees of DOF Management Australia Pty Ltd (the Respondent). The 30-day period for protected action had begun on 11 February 2023, the date the ballot result was declared, and was set to expire at midnight on 10 March 2023. The Respondent did not oppose the application to extend the period.

The court had to decide whether the requirements of s.459(3) of the Fair Work Act 2009 were met for an extension to be granted. The court considered that the Applicant had met the requirements, as the period specified in s.459(1)(d)(i) had not been previously extended. The court was satisfied that a 30-day extension was appropriate, and the extended period would commence from 10 March 2023. The court issued an order in PR751259 accordingly.

In conclusion, the Fair Work Commission granted the application for an extension of the 30-day period for protected action. The extended period would commence from 10 March 2023, providing the parties with additional time to resolve the dispute. The court made its decision based on the material before it and the absence of opposition from the Respondent.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established