Construction, Forestry, Maritime, Mining and Energy Union v Peabody CHPP Pty Ltd

[2022] FWC 1581

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Peabody CHPP Pty Ltd

(B2022/601)

VICE PRESIDENT CATANZARITI

SYDNEY, 22 JUNE 2022

Application to extend the 30 day period in relation to B2022/289

On 20 June 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, PR740281 made on 11 April 2022. The Order applies to certain employees of Peabody CHPP 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 25 May 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 23 June 2022.

On 22 June 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 23 June 2022, the extension period will operate from 23 June 2022.

An order has been separately issued in PR742905.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Construction, Forestry, Maritime, Mining and Energy Union (Applicant) versus Peabody CHPP Pty Ltd (Respondent), the Fair Work Commission was asked to decide on an application to extend the 30 day period for protected action authorised by a ballot order. The Application was made by the Construction, Forestry, Maritime, Mining and Energy Union under section 459(3) of the Fair Work Act 2009. The ballot order, PR740281, was made on 11 April 2022, and the results were declared on 25 May 2022, indicating that a majority of the relevant employees endorsed the proposed forms of protected industrial action. The 30 day period for protected action, as per section 459(1)(d)(i) of the Act, commenced on the date of the declaration and was set to expire on 23 June 2022.

The legal issues before the Commission were whether the application to extend the 30 day period for protected action was appropriate and whether all requirements of section 459 of the Fair Work Act had been met. The Act provides for the extension of the 30 day period under certain conditions, and the Commission needed to assess if those conditions were satisfied in this case. The Respondent did not oppose the application, and the Commission had to consider the documentation filed in the matter to determine if the requirements for an extension were met.

The Commission found that the application was made by the appropriate party, the Construction, Forestry, Maritime, Mining and Energy Union, and that the period specified in section 459(1)(d)(i) had not been previously extended. Based on the material before the Commission, it was satisfied that all relevant requirements of section 459 of the Act had been met, and a 30 day extension was appropriate. The extension period would operate from 23 June 2022, the date the original 30 day period was set to expire. An order has been separately issued in PR742905 to reflect this decision.

In conclusion, the Fair Work Commission determined that the application to extend the 30 day period for protected action was appropriate, and granted the extension as requested by the Construction, Forestry, Maritime, Mining and Energy Union. The extension period will operate from 23 June 2022, and an order has been issued to reflect this decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established