Construction, Forestry, Mining and Energy Union v Oceanic Coal Pty Limited

[2011] FWA 8934

[2011] FWA 8934

FAIR WORK AUSTRALIA

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, Mining and Energy Union
v
Oceanic Coal Pty Limited
(B2011/326)

DEPUTY PRESIDENT SAMS SYDNEY, 16 DECEMBER 2011

Application to extend 30 day period to commence protected action - application granted.

[1] On 14 December 2011, the Construction, Forestry, Mining and Energy Union (Mining and Energy Division) Northern District Branch (the ‘Union’) made application under s 459(3) of the Fair Work Act 2009 (“the Act”) to extend the period in which certain industrial action may be taken in respect of the protected action ballot order I made on 25 October 2011 in B2011/3781 [PR516072].  The respondent employer is Oceanic Coal Pty Limited.

[2] Section 459 of the Act reads as follows:

“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.”

[3] Section 459(3) of the Act confers a discretion on Fair Work Australia (“FWA”) as to whether to grant such an application upon satisfaction as to the two factual preconditions (at subsections (a) and (b) of s 459(3) of the Act) having being made out.

[4] Mr D Nicholls, bargaining representative for the employer, contacted my Chambers on 16 December 2011, to advise that the employer did not oppose the application made by the Union for the extension of the protected industrial action period.

[5] Given that the two factual preconditions have been met and that there are no considerations which would bear on my discretion to refuse the application, I intend to grant it. I will therefore order that the 30-day period which ended on 14 December 2011, be extended by a further 30 days.

[6] An order to that effect will issue contemporaneously with this decision.

DEPUTY PRESIDENT

<Price code A, PR518117>