Construction, Forestry, Maritime, Mining and Energy Union v UGM Mining Services Pty Ltd BIS Industries Limited Summary

[2022] FWC 2576

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

UGM Mining Services Pty Ltd
BIS Industries Limited

(B2022/1445)

VICE PRESIDENT CATANZARITI

SYDNEY, 26 SEPTEMBER 2022

Application to extend the 30 day period in relation to B2022/651

On 23 September 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, PR743583 made on 8 July 2022. The Order applies to certain employees of UGM Mining Services Pty Ltd and BIS Industries Limited (the Respondents).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 17 August 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 expired at midnight on 15 September 2022.

On 26 September 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 15 September 2022, the extension period will operate from 15 September 2022.

An order has been separately issued in PR746194.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to consider an application by the Construction, Forestry, Maritime, Mining and Energy Union (the Applicant) to extend the 30-day period for protected action that was authorised by a ballot order. The order in question, PR743583, was made on 8 July 2022 and applies to certain employees of UGM Mining Services Pty Ltd and BIS Industries Limited (the Respondents). The Respondents did not oppose the application, and so the matter was determined on the basis of the documentation filed. The application to extend the 30-day period was made under section 459(3) of the Fair Work Act 2009 (Cth), and the court had to consider whether the application met the requirements of the Act.

The legal issue before the court was whether the Applicant had satisfied the conditions of section 459(3) of the Fair Work Act 2009 (Cth) to extend the 30-day period for protected action. The court had to consider whether the application was made by the Applicant, who was the party for which the protected action ballot order was issued, and whether the period specified in section 459(1)(d)(i) had not been previously extended. The court also had to consider whether the extension was appropriate in the circumstances.

The court found that the Applicant had satisfied the conditions of section 459(3) of the Fair Work Act 2009 (Cth) to extend the 30-day period for protected action. The court found that the application was made by the Applicant and that the period specified in section 459(1)(d)(i) had not been previously extended. The court also found that a 30-day extension was appropriate in the circumstances. The court noted that the Respondents did not oppose the application and that the extension period would operate from 15 September 2022, the date on which the 30-day period was set to expire.

In light of the above, the court made an order extending the 30-day period for protected action authorised by a protected action ballot order, PR743583, from 15 September 2022 to 15 October 2022. The extension period will operate from 15 September 2022 and will expire at midnight on 15 October 2022. An order has been separately issued in PR746194.

Construction, Forestry, Maritime, Mining and Energy Union v UGM Mining Services Pty Ltd BIS Industries Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established