Construction, Forestry, Maritime, Mining and Energy Union v Illawarra Coal Holdings Pty Limited T/A South32

[2023] FWC 1920

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

Illawarra Coal Holdings Pty Limited T/A South32

(B2023/791)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 2 AUGUST 2023

Application to extend the 30 day period in relation to B2023/492

This matter concerns the declaration of the result of a protected action ballot (PR762550) held in matter B2023/492 and declared on 3 July 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.

The Respondent has advised the Commission it does not object 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 Illawarra Coal Holdings Pty Limited T/A South32 be extended by a further 30 days.

This order will operate on and from 2 August 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case before the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) sought an extension of the 30-day period in which industrial action could be authorised by a protected action ballot. The application was made against Illawarra Coal Holdings Pty Limited, trading as South32, and related to matter B2023/492. The Commission was required to determine whether the extension of the 30-day period was permissible under section 459(3) of the Fair Work Act 2009.

The key legal issue before the Commission was whether the CFMMEU's application met the statutory criteria for an extension of the 30-day period as set out in section 459(3) of the Act. Specifically, the Commission had to consider whether the applicant for the protected action ballot order had applied for the period to be extended, and whether the period had not previously been extended. The respondent did not object to the application, which simplified the Commission's task.

In granting the application, the Deputy President concluded that the statutory criteria were satisfied. The CFMMEU had applied for an extension within the timeframe prescribed by the Act, and there had been no previous extension of the 30-day period. Accordingly, the Commission determined that the application should be granted, and ordered that the 30-day period for the commencement of protected industrial action be extended by a further 30 days. The order took effect from 2 August 2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established