Construction, Forestry, Maritime, Mining and Energy Union v WICET Services Pty Ltd

[2023] FWC 2640

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Construction, Forestry, Maritime, Mining and Energy Union

WICET Services Pty Ltd

(B2023/1077)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 11 OCTOBER 2023

Application to extend the 30 day period in relation to B2023/910

This matter concerns the declaration of the result of a protected action ballot (PR765786) held in matter B2023/910 and declared on 15 September 2023.

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has made an application pursuant to s.459(3) of the Fair Work Act 2009 (Act) to extend the 30 day period in which industrial action is authorised by the relevant protected action ballot.

Section 459(3) of the Act provides as follows:

“(3) The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b) the period has not previously been extended.”

The application made by the CFMMEU contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

WICET Services Pty Ltd (WICET) has advised the Commission it has no objection to this application.

I am satisfied that the relevant requirements of the Act have been met and that the application should be granted.

Accordingly, pursuant to section 459(3) of the Act, I order that the 30 day period for the commencement of protected industrial action for eligible CFMMEU members employed by WICET be extended by a further 30 days.

This order will operate on and from 11 October 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

< PR767114>

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) to extend the 30-day period for commencing protected industrial action authorised by a protected action ballot. The ballot, declared on 15 September 2023, pertained to the dispute between the CFMMEU and WICET Services Pty Ltd (WICET) in matter B2023/910. The Union sought an extension under section 459(3) of the Fair Work Act 2009, which allows for such an extension if the period has not already been extended. WICET did not object to the application.

The primary legal issue before the Commission was whether the Union's application met the criteria set out in the Fair Work Act for extending the 30-day period for protected industrial action. This involved examining whether the Union had applied for the extension and whether the period had not previously been extended. Given that WICET did not oppose the application and that the Union confirmed the period had not been extended before, the Commission considered these conditions satisfied.

The Deputy President, Hampton, found that the requirements for an extension were fulfilled. The application was straightforward, and WICET's lack of objection further supported the granting of the extension. The Deputy President concluded that the application should be approved and ordered the extension of the 30-day period for the commencement of industrial action by a further 30 days, effective from 11 October 2023. This decision was made in accordance with the statutory provisions 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