United Workers' Union v Sealed Air Australia Pty Limited T/A Sealed Air Australia

[2023] FWC 2949

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

United Workers' Union
v

Sealed Air Australia Pty Limited T/A Sealed Air Australia

(B2023/1227)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 10 NOVEMBER 2023

Application to extend the 30-day period in relation to B2023/1042

This matter concerns the declaration of the result of a protected action ballot (PR766807) held in matter B2023/1042 and declared on 17 October 2023.

The United Workers’ Union (UWU or Applicant) has 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 by the relevant protected action ballot.

Section 459(3) of the Act provides as follows:

(3) The FWC 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 the FWC for the period to be extended; and

(b) the period has not previously been extended.

The application made by the Applicant contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

Sealed Air Australia Pty Limited T/A Sealed Air Australia (Sealed Air) has advised the Commission it has no objection to this application.

I am satisfied that the relevant requirements of the Act have been met and that the application should be granted.

Accordingly, pursuant to section 459(3) of the Act, I order that the 30-day period for the commencement of protected industrial action for eligible UWU members employed by Sealed Air be extended by a further 30 days.

This order will operate on and from 10 November 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of United Workers' Union v Sealed Air Australia Pty Limited T/A Sealed Air Australia pertains to an application by the United Workers' Union (UWU) to extend the period within which industrial action can be authorised following a protected action ballot. The Fair Work Commission (FWC) was tasked with deciding on this application, which concerns the extension of a 30-day period stipulated under section 459(3) of the Fair Work Act 2009. Sealed Air Australia Pty Limited, the respondent, did not object to the application.

The primary legal issue before the court was whether the UWU's application to extend the 30-day period for initiating industrial action should be granted. This required a determination of whether all statutory conditions under section 459(3) of the Fair Work Act had been satisfied, specifically whether the period had not previously been extended and whether the application was made by the applicant for the protected action ballot order. Additionally, the court needed to consider whether the extension was justified and in line with the legislative intent.

The Deputy President of the FWC, Wright, concluded that the UWU's application met all statutory requirements for an extension. The court found that the period had not been previously extended, and the application was appropriately made by the UWU. Furthermore, the absence of objections from Sealed Air Australia supported the granting of the extension. Given these findings, the Deputy President deemed it appropriate to extend the 30-day period by an additional 30 days. Consequently, the court ruled in favour of the UWU's application and ordered the extension to commence from 10 November 2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established