Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd Summary

[2023] FWC 2437

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
v

Noorton Pty Ltd

(B2023/1002)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 20 SEPTEMBER 2023

Application to extend the 30 day period in relation to B2023/671

This matter concerns the declaration of the result of a protected action ballot (PR763908) held in matter B2023/671 and declared on 9 August 2023.

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU or Applicant) 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.

Noorton Pty Ltd (Noorton) has advised the Commission it does not object 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 Noorton be extended by a further 30 days.

This order will operate on and from 20 September 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission, presided over by Deputy President Hampton, was presented with an application from the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) to extend the period during which industrial action is authorised by a protected action ballot, as per Section 459 of the Fair Work Act 2009. This application was made in relation to a dispute with Noorton Pty Ltd, following a ballot held and declared on 8 August 2023. The union sought an extension of the 30-day period allowed for initiating protected industrial action, as stipulated by the Act. Noorton Pty Ltd did not oppose the union's application.

The central legal issue for the Commission was whether the union's application met the criteria set out in Section 459(3) of the Act for extending the 30-day period. This section allows for an extension if the applicant for the ballot has applied for such an extension, and if the period has not already been extended. The union argued that all conditions were satisfied, and the period should be extended by an additional 30 days. The Commission was tasked with determining whether the union's application was valid and should be granted, considering the statutory requirements and the circumstances of the case.

In reaching its decision, the Commission considered the statutory requirements and the lack of opposition from Noorton Pty Ltd. Deputy President Hampton was satisfied that the application complied with the relevant provisions of the Act, and that the conditions for an extension were met. Consequently, the application was approved, and the period for initiating protected industrial action was extended by an additional 30 days. The order came into effect on 20 September 2023, thereby allowing the union to pursue industrial action within the extended timeframe.

The Commission's decision resulted in an order that the 30-day period for initiating protected industrial action by eligible CFMMEU members employed by Noorton Pty Ltd be extended by a further 30 days, effective from 20 September 2023. This ruling provides clarity and a definitive timeline for the union's industrial action, subject to the terms and conditions of the Fair Work Act 2009.

Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established