v Schindler Lifts Australia Pty Ltd

[2024] FWC 2423

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

Schindler Lifts Australia Pty Ltd

(B2024/1163)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 5 SEPTEMBER 2024

Application to extend the 30 day period in relation to B2024/946.

This matter concerns the declaration of the result of a protected action ballot PR777548 held in matter B2024/946 and declared on 9 August 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.

Schindler Lifts Australia Pty Ltd 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 5 September 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) has applied to the Fair Work Commission (FWC) under section 459(3) of the Fair Work Act 2009 to extend the 30-day period during which industrial action is authorised by a protected action ballot. The application relates to a ballot held and declared on 9 August 2024, in matter B2024/946, and Schindler Lifts Australia Pty Ltd (the Employer) has indicated it has no objection to the application. The matter was heard by Deputy President Hampton in Adelaide on 5 September 2024.

The legal issue before the court was whether the application met the statutory requirements under section 459(3) of the Fair Work Act 2009 to extend the 30-day period for the commencement of protected industrial action. Specifically, the court had to determine if the 30-day period had not previously been extended and if the Union, as an applicant for the protected action ballot order, had applied to the FWC for the period to be extended.

Deputy President Hampton found that the application met the requirements under the statute. The court was satisfied that the Union had applied for the extension within the stipulated timeframe and that the period had not previously been extended. Consequently, the Deputy President granted the application and ordered 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 is effective from 5 September 2024.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established