Construction, Forestry, Maritime, Mining and Energy Union v GrainCorp Operations Limited

[2022] FWC 2486

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

GrainCorp Operations Limited

(B2022/1388)

VICE PRESIDENT CATANZARITI

SYDNEY, 16 SEPTEMBER 2022

Application to extend the 30 day period in relation to B2022/658

On 15 September 2022, 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, PR743592 made on 8 July 2022. The Order applies to certain employees of GrainCorp Operations Limited (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 17 August 2022. 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 expired at midnight on 15 September 2022.

On 16 September 2022, 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 expired at midnight on 15 September 2022, the extension period will operate from 15 September 2022.

An order has been separately issued in PR745929.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (the Applicant) sought an extension of the 30-day period for protected action from the Fair Work Commission (the Commission) under section 459(3) of the Fair Work Act 2009 (Cth). The protected action related to certain employees of GrainCorp Operations Limited (the Respondent). A ballot order, PR743592, had been made on 8 July 2022 and the result of the ballot, which showed a majority of employees endorsing the proposed forms of industrial action, was declared on 17 August 2022. The 30-day period for protected action, which began on the date of the declaration of the ballot result, was due to expire on 15 September 2022. The Respondent did not oppose the application for an extension.

The primary legal issue before the Commission was whether the requirements of section 459(3) of the Fair Work Act had been met to permit an extension of the 30-day period for protected action. The relevant requirements included that the application be made by the Applicant within the 30-day period, and that the period had not been previously extended. The Commission had to determine if the Applicant had fulfilled these conditions and if an extension was appropriate.

The Commission found that the Applicant had fulfilled all the relevant requirements under section 459(3) of the Fair Work Act. The application had been made within the 30-day period, and the period had not been previously extended. The Commission was satisfied that the extension was appropriate based on the material before it. Consequently, the Commission granted the extension, effective from the expiration of the initial 30-day period, which was at midnight on 15 September 2022.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established