v Qube Ports Pty Ltd T/A Qube Ports

[2024] FWC 2800

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

Qube Ports Pty Ltd T/A Qube Ports

(B2024/1315)

DEPUTY PRESIDENT HAMPTON

SYDNEY, 9 OCTOBER 2024

Application to extend the 30 day period in relation to B2024/949.

This matter concerns the declaration of the result of a protected action ballot PR777769 held in matter B2024/949 and declared on 6 September 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.

Qube Ports Pty Ltd trading as Qube Ports 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 5 October 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide on an application by the Construction, Forestry and Maritime Employees Union to extend the period allowed for industrial action authorised by a protected action ballot. The dispute was between the Union and Qube Ports Pty Ltd, which operates as Qube Ports. The Union had conducted a ballot, PR777769, which was declared on 6 September 2024, and was seeking to extend the 30-day period during which industrial action could be taken, as permitted by section 459(3) of the Fair Work Act 2009. The Union's application was made on the basis that the statutory requirements for such an extension were satisfied, and Qube Ports had not raised any objections.

The primary legal issue before the Commission was whether the Union's application met the criteria for an extension under section 459(3) of the Fair Work Act. Specifically, the Union had to demonstrate that it had applied to the Commission for the extension and that the period had not already been extended. Given that the Union had made the application and Qube Ports had not objected, the Commission found that the requirements for an extension were indeed fulfilled. The Commission was satisfied that the Union had adhered to the statutory framework in making its application and that there were no impediments to granting the requested extension.

In light of the Union's compliance with the statutory requirements and the absence of any objections from Qube Ports, the Deputy President of the Commission, Hampton, ruled that the application should be granted. The 30-day period for the commencement of industrial action was thus extended by an additional 30 days. The order took effect from 5 October 2024, thereby providing the Union with an extended window to initiate industrial action if deemed necessary.

The final orders of the Commission were 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 Qube Ports be extended by a further 30 days, effective from 5 October 2024.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established