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

[2013] FWC 8497

[2013] FWC 8497

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.425—Industrial action

EnergyAustralia Yallourn Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(B2013/1269)

COMMISSIONER BISSETT MELBOURNE, 29 OCTOBER 2013

Application for an Order for extension of a suspension of protected industrial action.

[1] On 27 September 2013 I made an ex tempore decision and issued an Order (PR542612) pursuant to section 425 of the Fair Work Act 2009 (the Act) that all protected industrial action being taken in relation to a proposed agreement to replace the TRUenergy Yallourn Pty Ltd Workplace Agreement 2008 be suspended for a period commencing 7.00am on Monday 30 September 2013 and ending on the earlier of 1 November 2013 or the date on which the result of an employee ballot on the proposed agreement is declared. The Order is binding on EnergyAustralia Yallourn Pty Ltd, the Construction, Forestry, Mining and Energy Union and all employees to be covered by the proposed agreement.

[2] On 25 October 2013 lawyers for EnergyAustralia Yallourn Pty Ltd made an application pursuant to section 428 of the Act seeking an order (the extension order) to extend the original Order to allow for the suspension of the protected industrial action until 7.00am on 11 November 2013.

[3] The extension order is sought on the grounds that the employee ballot to be conducted on the proposed enterprise agreement to determine whether the employees approve the proposed agreement is not yet complete and is scheduled to conclude on Friday 8 November 2013.

[4] The Construction, Forestry, Mining and Energy Union (CFMEU) has indicated in writing that it supports the extension order sought by EnergyAustralia Yallourn Pty Ltd. The CFMEU believes that an extension to the Order will assist the voting process for the proposed agreement.

[5] The parties have indicated that they are satisfied that I decide the matter on the basis of the written application.

Consideration

Section 428 of the Act states:

428 Extension of a period of suspension

(1) The FWC may make an order extending the period of suspension specified in an order (the suspension order) suspending protected industrial action for a proposed enterprise agreement if:

(a) the person who applied, or a person who could have applied, for the suspension order, applies for the extension; and

(b) the FWC has not previously made an order under this section in relation to the suspension order; and

(c) the FWC is satisfied that the extension is appropriate taking into account any matters the FWC considers relevant including the matters specified in the provision under which the suspension order was made.

(2) If the FWC is permitted to make an order under this section:

(a) the FWC must specify, in the order, the period of extension; and

(b) the FWC may specify, in the order, a longer period of notice of up to 7 working days for the purposes of paragraph 430(2)(b) if the FWC is satisfied that there are exceptional circumstances justifying that longer period of notice.

[6] In this case the application has been made by the person who applied for the suspension order. There has been no previous decision to grant an order to extend the period of the suspension.

[7] I am satisfied in this case that the extension is appropriate taking into account all of those matters that were relevant at the time the original Order was made. In making the Order I considered the benefits to the parties of being able to consider the proposed agreement for approval in circumstances where there was no industrial action occurring. I consider this to remain the case. When I granted the original Order the parties anticipated that the voting on the proposed agreement would be completed by 1 November 2013. It is apparent that this is no longer the case with the ballot to now conclude on 8 November 2013.

[8] This being so I consider it appropriate to extend the suspension. An order to this effect will issue in conjunction with this decision.

COMMISSIONER

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