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

[2022] FWC 532

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Vaughan Constructions Pty Ltd

(B2022/167)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 MARCH 2022

Application to extend the 30 day period in relation to B2021/1189

On 7 March 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, PR736722 made on 13 December 2021. The Order applies to certain employees of Vaughan Constructions 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 3 February 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 4 March 2022.

On 7 March 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 expired at midnight on 4 March 2022, the extension period will operate from 4 March 2022.

An order has been separately issued in PR739176.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide whether to extend a 30-day period for protected industrial action authorised by a protected action ballot order made by the Construction, Forestry, Maritime, Mining and Energy Union. The order, which applied to certain employees of Vaughan Constructions Pty Ltd, was issued on 13 December 2021 and the results of the ballot, which endorsed the proposed forms of protected industrial action, were declared on 3 February 2022. The Union applied to extend the 30-day period, which expired on 4 March 2022, and the Respondent did not oppose the application. The Vice President was satisfied that the requirements of the Fair Work Act 2009 had been met and that a 30-day extension was appropriate.

The main legal issue in this case was whether the Fair Work Commission had the power to extend the 30-day period for protected industrial action under s.459 of the Fair Work Act 2009. The relevant provision of the Act states that a protected action ballot order may specify a period for protected action and that the period may be extended by the Fair Work Commission if certain conditions are met. The Union argued that the conditions had been met and that an extension was appropriate, while the Respondent did not oppose the application. The Vice President found that the requirements of the Act had been met and that an extension was appropriate.

The Vice President considered the provisions of s.459 of the Fair Work Act 2009 and found that the Union had met the requirements for an extension. The Vice President noted that the 30-day period had not been previously extended and that the Respondent did not oppose the application. The Vice President found that an extension was appropriate and that the extension period would operate from 4 March 2022. The Vice President also noted that an order had been separately issued in PR739176.

The Fair Work Commission extended the 30-day period for protected industrial action authorised by the protected action ballot order. The extension period will operate from 4 March 2022. An order has been separately issued in PR739176.

Construction, Forestry, Maritime, Mining and Energy Union v Vaughan Constructions Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established