v Newcastle Port Corporation T/A Port Authority Of New South Wales

[2025] FWC 214

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

Construction, Forestry and Maritime Employees Union

Newcastle Port Corporation T/A Port Authority Of New South Wales

(B2025/139)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 22 JANUARY 2025

Application to extend the 30 day period in relation to B2024/1594.

This matter concerns the declaration of the result of a protected action ballot PR782124 held in matter B2024/1594 and declared on 20 December 2024.

The Construction, Forestry and Maritime Employees Union 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.

Newcastle Port Corporation T/A Port Authority Of New South Wales has advised the Commission they have 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 22 January 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry and Maritime Employees Union applied for an extension to the 30-day period for industrial action authorised by a protected action ballot held in relation to the Newcastle Port Corporation T/A Port Authority Of New South Wales. The application was made under section 459(3) of the Fair Work Act 2009. The Newcastle Port Corporation indicated it had no objection to the application.

The primary legal issue before the Commission was whether the conditions specified in section 459(3) of the Act had been met to permit an extension of the 30-day period. The Act allows for an extension if the applicant for the ballot applies to the Commission and if the period has not previously been extended. The Union argued that all conditions had been satisfied and that the period should be extended by a further 30 days. The Commission was required to determine if the application was valid and should be granted.

The Deputy President Hampton found that the Union's application met the statutory requirements and granted the application. The Union had applied for the extension and the period had not previously been extended. The Commission was satisfied that the application should be approved, and accordingly, ordered that the 30-day period for protected industrial action be extended by a further 30 days. The extension took effect from 22 January 2025.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established