v Downer EDI Works Pty Ltd Summary

[2024] FWC 1970

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Downer EDI Works Pty Ltd

(B2024/942)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 25 JULY 2024

Application to extend the 30 day period in relation to B2024/851.

This matter concerns the declaration of the result of a protected action ballot PR776773 held in matter B2024/851 and declared on 22 July 2024.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 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 contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

Downer EDI Works Pty Ltd 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 employees who were subject to the ballot and are employed by the Employer be extended by a further 30 days.

This order will operate on and from 25 July 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission concerns an application made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, seeking an extension of the 30-day period during which industrial action can be authorised by a protected action ballot. This application follows the declaration of the result of ballot PR776773, held in matter B2024/851 and declared on 22 July 2024. Downer EDI Works Pty Ltd, the employer, has indicated that it does not object to the application. The Commission is tasked with determining whether the application complies with the requirements of section 459(3) of the Fair Work Act 2009, and if so, whether the requested extension should be granted.

The legal issues central to this case revolve around the interpretation and application of section 459(3) of the Fair Work Act 2009. Specifically, the Commission must assess whether the applicant has satisfied the statutory criteria for extending the 30-day period during which industrial action can be authorised by a protected action ballot. This involves verifying that the applicant has indeed applied to the Commission for an extension, and confirming that the period has not previously been extended. Given the employer's lack of objection, the focus is primarily on the statutory requirements and the Commission's discretion in exercising its powers under the Act.

In considering the application, Deputy President Hampton found that the applicant had met all the statutory requirements for an extension. The Commission noted that the applicant had applied for the extension and that the 30-day period had not previously been extended. Given these findings, the Deputy President concluded that the application should be granted. Consequently, the 30-day period for the commencement of protected industrial action for eligible employees who were subject to the ballot and are employed by Downer EDI Works Pty Ltd was extended by a further 30 days, effective from 25 July 2024. This decision was made in accordance with the statutory authority granted by section 459(3) of the Fair Work Act 2009.

The final orders of the Commission reflect the decision to grant the application and extend the specified period by an additional 30 days. This extension will apply to the eligible employees covered by the protected action ballot PR776773, as declared on 22 July 2024. The extension operates from 25 July 2024, ensuring that the employees have the opportunity to take protected industrial action within the newly extended timeframe.

v Downer EDI Works Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established