Construction, Forestry, Maritime, Mining and Energy Union v Kogan Creek Power Pty Ltd T/A CS Energy Pty Ltd

[2023] FWC 2643

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

Kogan Creek Power Pty Ltd T/A CS Energy Pty Ltd

(B2023/1078)

DEPUTY PRESIDENT HAMPTON

MELBOURNE, 12 OCTOBER 2023

Application to extend the 30 day period in relation to B2023/901

This matter concerns the declaration of the result of a protected action ballot (PR765719) held in matter B2023/901 and declared on 15 September 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.

Kogan Creek Power Pty Ltd trading as CS Energy Pty Ltd (CS Energy) has not advised the Commission of any 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 CS Energy be extended by a further 30 days.

This order will operate on and from 12 October 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

< PR767120>

CaseChat Overview and Summary

The Fair Work Commission considered an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) to extend the 30-day period during which industrial action is authorised by a protected action ballot. The case involved a dispute between the CFMMEU and Kogan Creek Power Pty Ltd trading as CS Energy Pty Ltd, concerning the authorisation of industrial action by union members employed by CS Energy. The CFMMEU sought to extend the period from the initial 30 days as permitted under section 459(3) of the Fair Work Act 2009, which allows for an extension if certain conditions are met. CS Energy did not object to the application.

The legal issue before the Commission was whether the application met the statutory requirements for an extension, specifically whether the period had not already been extended and whether the application was made by an applicant for the protected action ballot order. Section 459(3) of the Act stipulates that the period may be extended by up to 30 days if both conditions are satisfied. The Commission had to determine if the CFMMEU's application complied with these conditions and if the extension was justified under the Act.

The Deputy President found that the CFMMEU's application met the statutory requirements, as it was made by an applicant for the protected action ballot order and the period had not been previously extended. Consequently, the application was granted, and the 30-day period for the commencement of protected industrial action was extended by a further 30 days. This extension took effect from 12 October 2023. The decision was made in the absence of any objection from CS Energy.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established