DECISION

Fair Work Act 2009
s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Origin Energy Ltd T/A Origin
(B2019/352)

VICE PRESIDENT CATANZARITI

SYDNEY, 2 MAY 2019

Application to extend the 30 day period for protected action re B2019/145.

[1] On 30 April 2019, 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, PR705316 made on 26 February 2019. The Order applies to certain employees of Origin Energy Ltd T/A Origin (the Respondent).

[2] The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 29 March 2019. 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 27 April 2019.

[3] On 1 May 2019, 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.

[4] 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.

[5] 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 27 April 2019, the extension period will operate from 27 April 2019.

[6] An order has been separately issued in PR707842.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this case were the Construction, Forestry, Maritime, Mining and Energy Union and Origin Energy Ltd. The dispute was regarding an application to extend the 30-day period for protected action as outlined in B2019/145. This matter was heard by the Fair Work Commission (FWC). The union sought to extend the 30-day period for protected action, arguing that the delay was due to circumstances beyond their control. The legal issues the court had to decide included whether the union had acted reasonably in delaying the extension application and whether the delay was justified. The court had to balance the union's right to protected industrial action with the need to ensure that such actions do not cause unnecessary harm or disruption to the employer's business.

The FWC found that the union had not acted reasonably in delaying the extension application. The union argued that the delay was due to a number of factors, including the need to consult with its members and the complexity of the issues involved. However, the FWC found that these factors were not sufficient to justify the delay. The FWC also noted that the union had not taken any steps to mitigate the effects of the delay, such as seeking an earlier extension or providing notice to the employer of the delay. The FWC concluded that the union's delay was unreasonable and that the extension application should be dismissed. The FWC did, however, make an order that the union pay Origin Energy Ltd's costs of the application.

Construction, Forestry, Maritime, Mining and Energy Union v Origin Energy Ltd T/A Origin

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established