v Nilsen (SA) Pty Ltd Summary

[2024] FWC 1212

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

Nilsen (SA) Pty Ltd

(B2024/523)

DEPUTY PRESIDENT HAMPTON

SYDNEY, 9 MAY 2024

Application to extend the 30 day period in relation to B2024/152.

This matter concerns the declaration of the result of a protected action ballot PR771785 held in matter B2024/152 and declared on 10 April 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.

Nilsen (SA) Pty Ltd (Employer) has 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 9 May 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia as the applicant, and Nilsen (SA) Pty Ltd as the respondent. The union sought to extend the 30-day period within which industrial action could be taken, as authorised by a protected action ballot. The application was brought before the Fair Work Commission under section 459(3) of the Fair Work Act 2009. The union argued that the specified conditions for extending the period were satisfied and requested an additional 30-day extension.

The central legal issue before the Commission was whether the union had met the statutory requirements to extend the 30-day period for protected industrial action. Specifically, the court needed to determine if the union's application was made within the stipulated timeframe and if the period had not already been extended. The union contended that all conditions were met, while Nilsen (SA) Pty Ltd did not oppose the application. The Deputy President needed to consider the union's arguments and the relevant statutory provisions to make a decision.

The Deputy President found that the union had met all the necessary criteria for extending the period under section 459(3) of the Act. Given that the employer had no objections, the court granted the application. Consequently, the 30-day period for initiating protected industrial action was extended by an additional 30 days, effective from 9 May 2024. This decision allowed the union to proceed with the authorised industrial action within the extended timeframe.

v Nilsen (SA) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established