Construction, Forestry, Maritime, Mining and Energy Union v Mines Rescue Pty Ltd

[2022] FWC 3123

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union

Mines Rescue Pty Ltd

(B2022/1751)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 NOVEMBER 2022

Application to extend the 30 day period in relation to B2022/1391

On 22 November 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, PR746017 made on 19 September 2022. The Order applies to certain employees of Mines Rescue 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 26 October 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 expires at midnight on 24 November 2022.

On 22 November 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 expires at midnight on 24 November 2022, the extension period will operate from 24 November 2022.

An order has been separately issued in PR748274.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of an application by the Construction, Forestry, Maritime, Mining and Energy Union to extend the 30 day period for protected industrial action authorised by a protected action ballot order, the Fair Work Commission was required to decide whether the statutory requirements under section 459 of the Fair Work Act 2009 were met to warrant an extension. The application was made pursuant to section 459(3) of the Act, and the Commission was required to consider the circumstances and the provisions of the Act that govern extensions of the specified period for protected action. The Commission needed to ensure that the application was made by the appropriate party, that the original 30 day period had not been extended previously, and that all relevant conditions were satisfied to justify the extension.

The Fair Work Commission, led by Vice President Catanzariti, determined the matter on the basis of the documentation filed, as the respondent, Mines Rescue Pty Ltd, did not oppose the application. The Commission noted that the 30 day period for protected action, which commenced on the date of the declaration of the ballot results on 26 October 2022, was set to expire at midnight on 24 November 2022. In considering the statutory requirements under section 459 of the Fair Work Act 2009, the Commission found that all relevant conditions were met, including that the application was made by the appropriate party and that the original period had not been extended previously. Consequently, the Commission was satisfied that an extension was appropriate and issued an order for a 30 day extension, effective from 24 November 2022.

In conclusion, the Fair Work Commission granted the Construction, Forestry, Maritime, Mining and Energy Union's application for an extension of the 30 day period for protected industrial action, as authorised by the protected action ballot order. The Commission determined that the statutory requirements under section 459 of the Fair Work Act 2009 were met and that the extension was appropriate. An order has been issued in PR748274, extending the 30 day period for protected action from 24 November 2022.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established