v NewCold Melbourne Pty Ltd and NewCold Melbourne No 2 Pty Ltd

[2024] FWC 2934

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

NewCold Melbourne Pty Ltd and NewCold Melbourne No 2 Pty Ltd

(B2024/1383)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 22 OCTOBER 2024

Application to extend the 30 day period in relation to B2024/1218.

This matter concerns the declaration of the result of a protected action ballot PR779334 held in matter B2024/1218 and declared on 2 October 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.

NewCold Melbourne Pty Ltd and NewCold Melbourne No 2 Pty Ltd have advised the Commission that they had no submissions to make regarding the 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 October 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for an extension of the 30-day period for industrial action authorised by a protected action ballot. This application was made in relation to the employers, NewCold Melbourne Pty Ltd and NewCold Melbourne No 2 Pty Ltd, and involved the interpretation and application of section 459(3) of the Fair Work Act 2009. The primary issue before the Deputy President was whether the application met the statutory criteria for an extension, namely that an applicant for the protected action ballot order had applied for the period to be extended and that the period had not previously been extended. The employers did not oppose the application, and the Deputy President was satisfied that the conditions for an extension were met.

The Deputy President considered the application and found that it complied with the requirements of section 459(3) of the Fair Work Act 2009. The Deputy President noted that the application was made by the CEPU, an applicant for the protected action ballot order, and that the 30-day period had not been previously extended. Given these findings, the Deputy President concluded that the application should be granted. The reasoning was straightforward, as both statutory requirements were clearly met. The Deputy President thus exercised the Commission's discretion to extend the period by an additional 30 days.

In light of the above, the Deputy President ordered that the 30-day period for the commencement of protected industrial action for eligible employees who were subject to the ballot and employed by the employers be extended by a further 30 days. This extension was to operate from 22 October 2024, the date of the decision. This order granted the CEPU's application in full, providing the union with additional time to potentially pursue industrial action against the employers.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established