Construction, Forestry, Maritime, Mining and Energy Union v Ventia (Australia) Pty Ltd Summary

[2023] FWC 1330

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Ventia (Australia) Pty Ltd

(B2023/527)

VICE PRESIDENT CATANZARITI

SYDNEY, 5 JUNE 2023

Application to extend the 30 day period in relation to B2023/270

On 2 June 2023, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) (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, PR760576 made on 24 March 2023. The Order applies to certain employees of Ventia (Australia) 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 10 May 2023. 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 8 June 2023.

The Respondent neither consented nor objected to the CFMMEU’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 CFMMEU 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 8‎ ‎June‎ ‎2023, the extension period will operate from 8‎ June‎ ‎2023.

An order has been separately issued in PR762820.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied to the Fair Work Commission for an extension of the 30 day period for protected action authorised by a protected action ballot order issued earlier in the year. The order applied to certain employees of Ventia (Australia) Pty Ltd. The ballot result, indicating a majority endorsement for the proposed industrial action, was declared on 10 May 2023. The 30 day period for protected action, commencing from the date of the ballot result declaration, was set to expire on 8 June 2023. Ventia neither consented nor objected to the CFMMEU’s application, leading the Vice President to determine the matter based on the documentation submitted.

The primary legal issue before the Fair Work Commission was whether the 30 day period for protected action could be extended in accordance with section 459(3) of the Fair Work Act 2009. The Act allows for such an extension, provided certain conditions are met, including the fact that the period specified in section 459(1)(d)(i) has not been previously extended. The Commission had to assess if the application met the statutory requirements and if the extension was appropriate given the circumstances.

The Vice President found that the CFMMEU had met all relevant requirements of section 459 of the Act, and the extension was deemed appropriate. The 30 day period, which was due to expire at midnight on 8 June 2023, was extended. The extension was set to commence from 8 June 2023, thereby allowing for a continuation of the protected action beyond the original 30 day limit. The Commission issued a separate order to reflect this decision.

Construction, Forestry, Maritime, Mining and Energy Union v Ventia (Australia) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established