Transport Workers' Union of Australia v ComfortDelgro Corporation Australia Pty Ltd T/A CDC NSW

[2022] FWC 608

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Transport Workers’ Union of Australia
v

ComfortDelgro Corporation Australia Pty Ltd T/A CDC NSW

(B2022/207)

VICE PRESIDENT CATANZARITI

SYDNEY, 18 MARCH 2022

Application to extend the 30 day period in relation to B2022/32

On 15 March 2022, the Transport Workers’ Union of Australia (Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.459(3) of the Fair Work Act 2009 (Cth) (the Act) to extend the 30 day period for protected action authorised by a protected action ballot order, PR737806 made on 27 January 2022. The Order applies to certain employees of ComfortDelgro Corporation Australia Pty Ltd T/A CDC NSW (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 11 February 2022. Pursuant to s.459(1)(d)(i) of the Act, the 30 day period for protected action commenced on the date of the declaration of the results of the ballot and therefore expired at midnight on 12 March 2022.

On 16 March 2022, the Respondent advised the Commission via email that it does not oppose the Transport Workers’ Union of Australia’s application to extend the 30 day period for protected industrial action. Accordingly, I have determined the matter on the basis of the documentation filed.

In addressing s.459(3) of the Act, this application is made by the Transport Workers’ Union of Australia who is the Applicant for which the protected action ballot order was issued. Furthermore, the period specified in s.459(1)(d)(i) has not been previously extended.

On that basis and on the material before me, I am satisfied that each of the relevant requirements of s.459 of the Act have been met and that a 30 day extension is appropriate. As the 30 day period expired at midnight on 12 March 2022, the extension period will operate from 12 March 2022.

An order has been separately issued in PR739445.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Transport Workers’ Union of Australia v ComfortDelgro Corporation Australia Pty Ltd T/A CDC NSW involved an application by the Transport Workers’ Union of Australia (Applicant) to the Fair Work Commission (the Commission) to extend the 30 day period for protected action under section 459(3) of the Fair Work Act 2009 (Cth). The application followed a protected action ballot order, PR737806, which was authorised on 27 January 2022 and applied to certain employees of ComfortDelgro Corporation Australia Pty Ltd T/A CDC NSW (the Respondent). The ballot result, indicating majority support for the proposed industrial action, was declared on 11 February 2022, triggering a 30 day period for protected action that expired on 12 March 2022.

The legal issues before the Commission centered on whether the application met the criteria under section 459(3) of the Act for extending the 30 day period for protected industrial action. Specifically, the Commission needed to determine whether the Applicant had fulfilled all relevant requirements under the Act and whether the period had been previously extended. The Respondent did not oppose the application, which facilitated the decision-making process.

The Commission found that all relevant criteria under section 459 of the Act were satisfied and that extending the 30 day period was appropriate. Given that the original 30 day period expired at midnight on 12 March 2022, the extension would commence from that date. Consequently, the application was approved, and an order was issued accordingly. This decision was documented in PR739445, ensuring the legal framework for protected industrial action was appropriately adhered to.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established