v NewCold Melbourne Pty Ltd T/A NewCold Melbourne and NewCold Melbourne No 2 Pty Ltd T/A NewCold Melbourne

[2024] FWC 2948

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

United Workers' Union

NewCold Melbourne Pty Ltd T/A NewCold Melbourne and NewCold Melbourne No 2 Pty Ltd T/A NewCold Melbourne

(B2024/1392)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 24 OCTOBER 2024

Application to extend the 30 day period in relation to B2024/1207.

This matter concerns the declaration of the result of a protected action ballot PR779245 held in matter B2024/1207 and declared on 1 October 2024.

The United Workers' 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.

NewCold Melbourne Pty Ltd and NewCold Melbourne No 2 Pty Ltd, both trading as NewCold Melbourne have 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 24 October 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application from the United Workers' Union to extend the 30-day period within which industrial action could be authorised by a protected action ballot. This application was made under section 459(3) of the Fair Work Act 2009, and it related to the result of a protected action ballot PR779245 declared on 1 October 2024. The respondents, NewCold Melbourne Pty Ltd and NewCold Melbourne No 2 Pty Ltd, both trading as NewCold Melbourne, did not oppose the application. The primary legal issue before the Commission was whether the application met the statutory criteria for an extension of the 30-day period, as stipulated in section 459(3) of the Fair Work Act 2009.

The Deputy President of the Commission concluded that the application fulfilled the necessary requirements for an extension. The United Workers' Union had applied for the extension within the stipulated timeframe, and the 30-day period had not been extended previously. Based on these findings, the Deputy President determined that the application should be granted. Consequently, the 30-day period for the commencement of protected industrial action for eligible employees employed by the respondents was extended by a further 30 days, effective from 24 October 2024. This decision was made in line with the statutory provisions and the procedural requirements set out in the Fair Work Act 2009.

The final order extended the 30-day period for the commencement of protected industrial action for eligible employees by an additional 30 days, starting from 24 October 2024. This extension was granted in accordance with section 459(3) of the Fair Work Act 2009. This decision ensured that the employees had additional time to take authorised industrial action, subject to the terms and conditions specified in the protected action ballot. The respondents had no objections to this extension, and the Commission found that the application met the statutory criteria for an extension.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established