Construction, Forestry, Mining and Energy Union v EnergyAustralia Yallourn Pty Ltd

[2013] FWC 1814

Note: Judicial review of this decision [FCA-VID281/2013] pending.

[2013] FWC 1814

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459—Protected action

Construction, Forestry, Mining and Energy Union
v
EnergyAustralia Yallourn Pty Ltd
(B2013/61)

COMMISSIONER BISSETT MELBOURNE, 25 MARCH 2013

Application to extend the 30-day period in relation to B2013/555.

[1] This is an application by the Construction, Forestry, Mining and Energy Union to extend the 30-day period in which industrial action is authorised by a protected action ballot pursuant to s.459(3) of the Fair Work Act 2009 (the Act), which is set out below:

459 Circumstances in which industrial action is authorised by protected action ballot

(1) Industrial action by employees is authorised by a protected action ballot if:

(a) the action was the subject of the ballot; and

(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(c) more than 50% of the valid votes were votes approving the action; and

(d) the action commences:

(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii) if FWA has extended that period under subsection (3)—during the extended period.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

(2) If:

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(3) FWA 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 FWA for the period to be extended; and

(b) the period has not previously been extended.

[2] This application relates to a protected action ballot order made by Jones C on 22 January 2013 in matter B2013/555. The ballot was declared by the AEC on 14 February 2013. An overwhelming number of employees eligible to vote in the ballot approved each form of industrial action proposed for consideration in the ballot. The CFMEU was the applicant for that Order.

[3] The application was filed on 18 March 2013 and listed for hearing on 20 March 2013 in Melbourne. Mr Robert Reitano of counsel appeared with permission for the CFMEU and Mr Stuart Wood SC, appeared for EnergyAustralia Yallourn Pty Ltd.

[4] The application was opposed by EnergyAustralia Yallourn Pty Ltd.

[5] I have decided to grant the application. An order will issue accordingly. Written reasons for this decision will be issued.

COMMISSIONER

Appearances:

R. Reitano of Counsel, for the Applicant.

S. Wood of Senior Counsel, for the Respondent.

Hearing details:

2013.

Melbourne:

20 March.

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