Construction, Forestry, Maritime, Mining and Energy Union v Illawarra Coal Holdings Pty Ltd

[2022] FWC 1912

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Illawarra Coal Holdings Pty Ltd

(B2022/706)

VICE PRESIDENT CATANZARITI

SYDNEY, 20 JULY 2022

Application to extend the 30 day period in relation to B2022/366

On 18 July 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, PR741280 made on 5 May 2022. The Order applies to certain employees of Illawarra Coal Holdings 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 17 June 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 16 July 2022.

On 19 July 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 16 July 2022, the extension period will operate from 16 July 2022.

An order has been separately issued in PR743991.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (the Union) applied to the Fair Work Commission (the Commission) for an extension of the 30-day period for protected action authorised by a ballot order. The Union sought to extend the period under section 459(3) of the Fair Work Act 2009 (Cth) (the Act) and the application was made against Illawarra Coal Holdings Pty Ltd (the Company). The ballot order, PR741280, had been made on 5 May 2022 and applied to certain employees of the Company. The Union was granted leave to hold a protected action ballot, and the result of the ballot was declared on 17 June 2022. The 30-day period for protected action expired on 16 July 2022.

The Union sought to extend the 30-day period for protected action under section 459(3) of the Act. The legal issue was whether the Union had met the requirements of the section to extend the period. The Union argued that the application was made by the party for whom the protected action ballot order was issued, and that the 30-day period had not been previously extended. The Company did not oppose the application. The Vice President determined that the Union had met the requirements of section 459 of the Act and that a 30-day extension was appropriate. The extension period would operate from 16 July 2022.

The Vice President concluded that the Union had met the requirements of section 459(3) of the Act and granted the application. The Union was entitled to a 30-day extension of the period for protected action. An order was separately issued in PR743991. The Company did not oppose the application, and the Union had met the requirements of the Act. The Vice President was satisfied that the extension was appropriate and granted the application.

No further orders were made. The Union was granted a 30-day extension of the period for protected action, which would operate from 16 July 2022. An order was separately issued in PR743991. The Company did not oppose the application, and the Union had met the requirements of the Act. The Vice President was satisfied that the extension was appropriate and granted the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established