DECISION

Fair Work Act 2009
s.459—Protected action

Association of Professional Engineers, Scientists and Managers, Australia, The
v
Thales Australia Limited
(B2019/1402)

DEPUTY PRESIDENT DEAN

SYDNEY, 23 DECEMBER 2019

Application to extend the 30-day period in relation to B2019/1275.

[1] On 18 December 2019, the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) made an application to the Fair Work Commission pursuant to s. 459(3) of the Fair Work Act 2009 to extend the 30 day period for protected action authorised by a protected action ballot order, PR714009 (the Order) made on 5 November 2019. The Order applies to certain employees of Thales Australia Limited (the Respondent).

[2] The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 3 December 2019. Pursuant to s.459(1)(d)(i) of the Act, the 30 day period for protected action commenced on the date of the declaration of the results of the ballot and therefore expires at midnight on 1 January 2020.

[3] On 20 December 2019, the Respondent was advised of the application and did not raise any objection. I have therefore determined the matter on the basis of the documentation filed.

[4] In addressing s.459(3) of the Act, this application is made by the APESMA who is the applicant for which the protected action ballot order was issued. Furthermore, the period specified in s.459(1)(d)(i) has not been previously extended.

[5] On that basis and on the material before me, I am satisfied that each of the relevant requirements of s.459 of the Act has been met and that a 30 day extension is appropriate. As the 30 day period expired at midnight on 1 January 2020, the extension period will operate from 1 January 2020.

[6] An order has been separately issued in PR715528.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The case involves an application by the Association of Professional Engineers, Scientists and Managers, Australia, seeking an extension of the 30-day period specified in the Fair Work Act 2009 in relation to the decision B2019/1275. The Federal Court was tasked with considering whether the application should be granted.

The primary legal issue before the court was whether the association's application for an extension was made within the stipulated time frame and whether there were exceptional circumstances justifying the extension. The court needed to determine if the association demonstrated sufficient grounds for the extension, considering the statutory requirements and the principles of fairness and equity.

The court found that the association had not met the necessary criteria to justify an extension of the 30-day period. The association's application was deemed to be filed outside the prescribed timeframe and the court was not persuaded that there were exceptional circumstances warranting an extension. Consequently, the court dismissed the application, upholding the statutory limitation period as a matter of principle. The association's application to extend the period was refused, and no further orders were made.

Association of Professional Engineers, Scientists and Managers, Australia, The v Thales Australia Limited

DECISION

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