Construction, Forestry, Maritime, Mining and Energy Union v Liberty Bell Bay Pty Ltd

[2022] FWC 2029

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Liberty Bell Bay Pty Ltd

(B2022/1159)

VICE PRESIDENT CATANZARITI

SYDNEY, 1 AUGUST 2022

Application to extend the 30 day period in relation to B2022/419

On 29 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, PR741457 made on 11 May 2022. The Order applies to certain employees of Liberty Bell Bay 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 23 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 22 July 2022.

On 1 August 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 22 July 2022, the extension period will operate from 22 July 2022.

An order has been separately issued in PR744377.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has recently dealt with an application by the Construction, Forestry, Maritime, Mining and Energy Union to extend the 30-day period for protected action, authorised by a ballot order, in relation to certain employees of Liberty Bell Bay Pty Ltd. The matter was heard by Vice President Catanzariti in Sydney on 1 August 2022. The Union applied to extend the period in accordance with section 459(3) of the Fair Work Act 2009, and the Respondent did not oppose the application. The Commission had to consider whether the application met the requirements under the Act to grant an extension of the specified period.

The key legal issue before the Commission was whether the application met the requirements under section 459 of the Act. The Commission had to determine if the relevant requirements had been met and if a 30-day extension was appropriate. Given that the 30-day period had already expired at midnight on 22 July 2022, the extension period would operate from that date. The Commission also had to consider the material filed by the parties and the relevant provisions of the Fair Work Act 2009.

The Commission concluded that the relevant requirements of section 459 of the Act had been met and that a 30-day extension was appropriate. The Commission took into account that the period specified in section 459(1)(d)(i) had not been previously extended. The Commission was satisfied that the application was made by the Union, which was the applicant for the protected action ballot order, and that the extension period would operate from 22 July 2022. The Commission issued an order in PR744377 accordingly.

In summary, the Fair Work Commission granted the Union's application to extend the 30-day period for protected action, based on the material filed and the relevant provisions of the Fair Work Act 2009. The extension period will operate from 22 July 2022, and an order has been issued in PR744377.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established