v J & A Machines Pty Limited

[2024] FWC 1785

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

J & A Machines Pty Limited

(B2024/857)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 8 JULY 2024

Application to extend the 30 day period in relation to B2024/475.

This matter concerns the declaration of the result of a protected action ballot PR774218 held in matter B2024/475 and declared on 7 June 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.

J & A Machines Pty Limited has not advised the Commission of any 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 8 July 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia has applied for an extension to the 30-day period for commencing industrial action as authorised by a protected action ballot. The application pertains to the result of ballot PR774218 declared on 7 June 2024 in matter B2024/475, involving J & A Machines Pty Limited. The Union seeks to extend the period under section 459(3) of the Fair Work Act 2009, which allows for a 30-day extension if the applicant requests it and the period has not already been extended. The Union argues that all statutory requirements are met and that the extension should be granted. J & A Machines Pty Limited has not objected to the application.

The key legal issue before the Deputy President was whether the statutory requirements for extending the 30-day period for protected industrial action under section 459(3) of the Act were satisfied. Specifically, the court had to determine if the Union's application was timely and if the period had not already been extended previously. The Union contended that both conditions were fulfilled, while J & A Machines Pty Limited did not raise any objections.

In rendering the decision, the Deputy President found that the Union's application met the statutory criteria for an extension. The 30-day period for protected industrial action had not been previously extended, and the Union had made its application within the allowable timeframe. Consequently, the Deputy President granted the Union's application, extending the period by an additional 30 days from 8 July 2024.

The Fair Work Commission ordered that the 30-day period for the commencement of protected industrial action for eligible employees, as authorised by ballot PR774218, be extended by a further 30 days, effective from 8 July 2024. This extension allows the Union more time to initiate industrial action in accordance with the authorisation provided by the ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established