Construction, Forestry, Maritime, Mining and Energy Union v Flinders Adelaide Container Terminal Pty Ltd

[2023] FWC 1444

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

Flinders Adelaide Container Terminal Pty Ltd

(B2023/595)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 19 JUNE 2023

Application to extend the 30 day period in relation to B2023/412

This matter concerns the declaration of the result of a protected action ballot (PR761704) held in matter B2023/412 and declared on 30 May 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.

Flinders Adelaide Container Terminal Pty Ltd has advised the Commission it has no 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 Flinders Adelaide Container Terminal Pty Ltd be extended by a further 30 days.

This order will operate on and from 19 June 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 initiating industrial action authorised by a protected action ballot, as per section 459(3) of the Fair Work Act 2009. The application was in relation to matter B2023/595, which was an extension request for the period specified in matter B2023/412. The respondent, Flinders Adelaide Container Terminal Pty Ltd, did not oppose the application.

The central legal issue before the Commission was whether the application met the statutory requirements to warrant an extension of the 30-day period for the commencement of industrial action. The CFMMEU argued that the conditions set out in section 459(3) of the Act were satisfied, and the 30-day period should be extended by a further 30 days. The Commission needed to assess if the application was made by an applicant for the protected action ballot order and whether the period had not been extended previously.

The Deputy President, Hampton, found that the requirements of the Act were indeed met. Flinders Adelaide Container Terminal Pty Ltd did not oppose the application, further supporting the CFMMEU's position. The Deputy President concluded that the application should be granted, and the 30-day period for the commencement of protected industrial action for eligible CFMMEU members employed by Flinders Adelaide Container Terminal Pty Ltd would be extended by an additional 30 days.

In accordance with section 459(3) of the Fair Work Act 2009, the Commission issued an order extending the 30-day period by a further 30 days, effective from 19 June 2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established