Construction, Forestry, Maritime, Mining and Energy Union v MMA Offshore Vessel Operations Pty Ltd T/A MMA Vessel Operations

[2023] FWC 87

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

MMA Offshore Vessel Operations Pty Ltd T/A MMA Vessel Operations

(B2023/24)

VICE PRESIDENT CATANZARITI

SYDNEY, 12 JANUARY 2023

Application to extend the 30 day period in relation to B2022/1762

On 11 January 2023, 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, PR748349 made on 28 November 2022. The Order applies to certain employees of MMA Offshore Vessel Operations Pty Ltd T/A MMA Vessel Operations (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 9 January 2023. 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 8 February 2023.

On 12 January 2023, the Respondent advised the Commission via email that it does not oppose the Applicant’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 8 February 2023, the extension period will operate from 8 February 2023.

An order has been separately issued in PR749612.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied to the Fair Work Commission to extend the 30-day period for protected industrial action authorised by a ballot order made on 28 November 2022. The order applied to certain employees of MMA Offshore Vessel Operations Pty Ltd. The ballot results, which showed a majority of relevant employees endorsing proposed industrial action, were declared on 9 January 2023. The 30-day period for protected action commenced on the date of the declaration of the ballot results and would expire at midnight on 8 February 2023. MMA Offshore Vessel Operations Pty Ltd did not oppose the application to extend the period.

The legal issue the Commission had to decide was whether the 30-day period for protected action could be extended under section 459(3) of the Fair Work Act 2009. The Act provides for the extension of the period if certain requirements are met. The CFMEU argued that the requirements were satisfied and requested an extension of 30 days. The Commission needed to consider whether the requirements of section 459 were met and if an extension was appropriate.

The Commission found that the CFMEU had met the requirements of section 459 of the Act, and that extending the 30-day period was appropriate. The Commission noted that the 30-day period had not been previously extended, and the application was made by the CFMEU, which was the applicant for the protected action ballot order. The Commission was satisfied that the relevant requirements were met, and granted a 30-day extension. The extended period would operate from 8 February 2023. An order was issued separately in PR749612.

The Fair Work Commission granted the application to extend the 30-day period for protected action. The extended period would operate from 8 February 2023. An order was issued separately in PR749612.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established