Construction, Forestry, Maritime, Mining and Energy Union v Tahmoor Coal Pty Ltd

[2022] FWC 760

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Tahmoor Coal Pty Ltd

(B2022/268)

VICE PRESIDENT CATANZARITI

PERTH, 5 APRIL 2022

Application to extend the 30 day period in relation to B2022/28

On 1 April 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, PR737752 made on 25 January 2022. The Order applies to certain employees of Tahmoor Coal 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 9 March 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 7 April 2022.

On 4 April 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 7 April 2022, the extension period will operate from 7 April 2022.

An order has been separately issued in PR740038.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union, acting on behalf of certain employees, applied to the Fair Work Commission for an extension of the 30-day period for protected industrial action, which was authorised by a protected action ballot order made on 25 January 2022. The ballot results, which indicated a majority endorsement of the proposed forms of protected industrial action, were declared on 9 March 2022. Consequently, the 30-day period for protected action began on the same day and is set to expire on 7 April 2022. The application was made under section 459(3) of the Fair Work Act 2009. The Respondent, Tahmoor Coal Pty Ltd, did not oppose the application and the Vice President of the Fair Work Commission, Catanzariti, determined the matter on the basis of the documentation filed.

The legal issues before the court centred on the interpretation and application of section 459 of the Fair Work Act 2009. Specifically, the court had to consider whether the requirements for extending the 30-day period for protected industrial action had been met, and if the extension was appropriate. The court was required to assess the documentation provided by the Applicant and determine whether the conditions set out in the Act had been satisfied. Additionally, the court had to ensure that the extension was consistent with the purpose and intent of the Fair Work Act 2009.

In making the decision, the Vice President of the Fair Work Commission, Catanzariti, noted that the application was made by the Construction, Forestry, Maritime, Mining and Energy Union, who were the Applicant for the protected action ballot order. The court further noted that the 30-day period specified in section 459(1)(d)(i) of the Act had not been previously extended. The Vice President was satisfied that the relevant requirements of section 459 of the Act had been met and that a 30-day extension was appropriate. The extension period was set to operate from 7 April 2022, the date on which the initial 30-day period would have expired.

An order was separately issued in PR740038, extending the 30-day period for protected industrial action from 7 April 2022 for a further 30 days. The Fair Work Commission's decision was based on the documentation filed and the absence of opposition from the Respondent. The court's reasoning was grounded in the statutory requirements of the Fair Work Act 2009 and the circumstances of the case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established