Construction, Forestry, Mining and Energy Union v Pacific Formwork (Aust) Pty Ltd

[2016] FWC 3945

[2016] FWC 3945

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, Mining and Energy Union
v
Pacific Formwork (Aust) Pty Ltd
(B2016/123)

COMMISSIONER JOHNS MELBOURNE, 17 JUNE 2016

Application to extend the 30-day period in relation to B2016/82.

[1] On 15 June 2016 the Construction, Forestry, Mining and Energy Union (CFMEU) 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 to occur. It has not previously sought to extend the period.

[1] The Protected Action Ballot Order was made on 5 May 2016 [PR580040]. The ballot was declared by the Australian Electoral Commission on 27 May 2016. Therefore, the 30-day period (starting from the date of the declaration of the ballot) expires on 26 June 2016.

[2] Section 459 of the Act provides 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.

(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] On 16 June 2016 the Commission wrote to Pacific Formwork (Aust) Pty Ltd (Respondent) to ascertain if there was any objection to the application. On 17 June 2016 the Respondent advised the Commission in writing that it did not oppose the application for extension made by CFMEU.

[4] It is the view of the Commission that there is no need to hold a hearing to determine this matter. The requirements in s.459(3)(a) and (b) have been met.

[5] The application for an extension of the 30-day period is granted.

[6] An order to this effect shall be issued today.

COMMISSIONER

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