v KONE Elevators Pty Ltd

[2024] FWC 1200

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

KONE Elevators Pty Ltd

(B2024/522)

DEPUTY PRESIDENT HAMPTON

SYDNEY, 8 MAY 2024

Application to extend the 30 day period in relation to B2024/248.

This matter concerns the declaration of the result of a protected action ballot PR772689 held in matter B2024/248 and declared on 10 April 2024.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) 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.

KONE Elevators Pty Ltd (The Employer) 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 May 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to consider an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) to extend the 30-day period during which industrial action was authorised by a protected action ballot. The application sought an extension of this period in relation to the ballot held for employees of KONE Elevators Pty Ltd. The employer did not object to the application.

The primary legal issue before the Commission was whether the application met the statutory requirements under section 459(3) of the Fair Work Act 2009, which allows for an extension of the 30-day period if certain conditions are satisfied. Specifically, the Commission had to determine if the 30-day period had not already been extended and if the applicant for the protected action ballot order had applied for the extension. Given that KONE Elevators Pty Ltd did not object to the application, the focus was on whether the statutory criteria had been met.

In deciding the application, Deputy President Hampton noted that the application met all the statutory requirements. Section 459(3) of the Act explicitly states that the Commission may extend the 30-day period if the applicant for the protected action ballot order applies for the extension, and the period has not already been extended. The Deputy President concluded that both conditions were satisfied and thus the application should be granted.

Accordingly, the Fair Work Commission granted the application and extended the 30-day period for the commencement of protected industrial action by a further 30 days. This extension is effective from 8 May 2024.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established