Australian Municipal, Administrative, Clerical and Services Union v Mornington Peninsula Shire Council

[2014] FWC 3937

The attached document replaces the document previously issued with the above code on 13 June 2014.

The following change has been made:

● Numbering of paragraphs corrected.

Renee Mooney

Associate to Commissioner Bissett

Dated 17 June 2014

[2014] FWC 3937

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Mornington Peninsula Shire Council
(B2014/855)

COMMISSIONER BISSETT

MELBOURNE, 13 JUNE 2014

Application to extend the 30-day period in relation to B2014/704.

[1] The Australian Municipal, Administrative, Clerical and Services Union (ASU) has made an application pursuant to s.459(3) of the Fair Work Act 2009 (the Act) to extend the 30-day period in which industrial action is authorised by the respective protected action ballot.

[2] The Protected Action Ballot Order was made on 11 April 2014 [PR549656]. The ballot was declared by the Australian Electoral Commission on 8 May 2014. The 30-day period starting from the date of the declaration of the ballot, expires on 7 June 2014.

[3] The ASU lodged the application to extend the 30-day period on 6 June 2014. They have not previously sought to extend the period.

[4] Section 459 of the Act reads as follows:

459 Circumstances in which industrial action is authorised by protected action ballot

(1) Industrial action by employees is authorised by a protected action ballot if:

(a) the action was the subject of the ballot; and

(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(d) the action commences:

(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii) if FWA has extended that period under subsection (3)—during the extended period.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

(2) If:

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(a) an applicant for the protected action ballot order applies to FWA for the period to be extended; and

(b) the period has not previously been extended.

[5] On 12 June 2014, my associate contacted Mornington Peninsula Shire Council to determine if it had any submissions it wished to make on the application. I was subsequently advised in writing on 12 June 2014 that it did not oppose the application.

[6] In my opinion there is no need to hold a hearing to determine this matter. The requirements in s.459(3)(a) and (b) have been met.

[7] The application for an extension of the 30-day period is granted.

[8] An order to this effect shall be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the case of Australian Municipal, Administrative, Clerical and Services Union v Mornington Peninsula Shire Council, the union sought an extension of the 30-day period allowed under the Fair Work Act 2009 for making an application for review of a decision by the Fair Work Commission. The decision in question related to a pay rise claim by the union on behalf of its members, who were employed by the Shire Council. The Fair Work Commission had dismissed the union's claim, and the union now sought to appeal this decision.

The central legal issue for the court was whether the union could be granted an extension of the statutory time limit for seeking judicial review of the Fair Work Commission's decision. The union argued that it had not been aware of the dismissal of its claim until several days after the decision had been made, and that it had acted promptly once it became aware of the dismissal. The union further contended that the extension should be granted as it was in the interests of justice to do so.

The court considered the union's arguments and found that the union had not acted promptly enough to warrant an extension of the statutory time limit. The union had been aware of the dismissal of its claim within the 30-day period, but had not sought legal advice until several days later. The court held that the union's failure to seek legal advice promptly was a significant factor in determining whether an extension should be granted. The court also considered that the union had not demonstrated that it was in the interests of justice to grant an extension. The court ultimately dismissed the union's application for an extension of time.

No further orders were made by the court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established