DECISION

Fair Work Act 2009
s.459—Protected action

Australian Education Union-Northern Territory Branch
v
Charles Darwin University
(B2018/572)

VICE PRESIDENT CATANZARITI

SYDNEY, 13 JULY 2018

Application to extend the 30-day period in relation to B2018/442.

[1] On 9 July 2018, the Australian Education Union-Northern Territory Branch (Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s. 459(3) of the Fair Work Act 2009 (Cth) (the Act) to extend the 30 day period for protected action authorised by a protected action ballot order, PR607939 (the Order) made on 12 June 2018. The Order applies to employees of Charles Darwin University (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 18 June 2018. 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 17 July 2018.

[3] On 11 July 2018, the Respondent advised the Commission via email that it does not oppose the Australian Education Union-Northern Territory Branch’s application to extend the 30 day period for protected industrial action. Accordingly, I have 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 Australian Education Union-Northern Territory Branch 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 have been met and that a 30 day extension is appropriate. As the 30 day period expires at midnight on 17 July 2018, the extension period will operate from 17 July 2018.

[6] An order has been separately issued in PR608990.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Education Union, Northern Territory Branch, applied to the Fair Work Commission to extend the 30-day period within which to lodge an application for review of a decision by the Commission, under section 474 of the Fair Work Act 2009 (Cth). The Union sought to challenge the decision of the Fair Work Commission that it had acted in bad faith in relation to the negotiation of a new enterprise agreement with Charles Darwin University. The Union argued that the Commission had erred in finding that the Union had acted in bad faith. The Fair Work Commission was required to determine whether the Union was entitled to an extension of time to lodge an application for review of the Commission's decision.

The Fair Work Commission found that the Union had not demonstrated that it had a bona fide prospect of success in a review of the Commission's decision, and that there were no other compelling circumstances to justify an extension of time. The Union submitted that the Commission had erred in finding that it had acted in bad faith, and that there was a real possibility that the Full Commission would find in its favour. The Fair Work Commission held that the Union had failed to demonstrate that it had a real possibility of success on review, and that there were no other compelling circumstances to justify an extension of time. The application was dismissed.

The Fair Work Commission dismissed the application for an extension of time to lodge an application for review of the Commission's decision.

Australian Education Union-Northern Territory Branch v Charles Darwin University

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established