DECISION

Fair Work Act 2009
s.459—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
Sydney Trains; NSW Trains T/A NSW TrainLink
(B2021/935)

VICE PRESIDENT CATANZARITI

SYDNEY, 5 OCTOBER 2021

Application to extend the 30 day period in relation to B2021/685

[1] On 29 September 2021, the Australian Municipal, Administrative, Clerical and Services Union (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, PR733007 made on 20 August 2021. The Order applies to certain employees of Sydney Trains and NSW Trains T/A NSW TrainLink (the Respondents).

[2] The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 7 September 2021. 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 6 October 2021.

[3] On 1 October 2021, the Respondents advised the Commission via email that they do not oppose the Australian Municipal, Administrative, Clerical and Services Union’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 Municipal, Administrative, Clerical and Services Union 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 6 October 2021, the extension period will operate from 6 October 2021.

[6] An order has been separately issued in PR734591.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application by the Australian Municipal, Administrative, Clerical and Services Union to extend the 30-day period for the purpose of filing an application for review under the Administrative Appeals Tribunal Act 1975. The application was in relation to the decision of Sydney Trains regarding a matter identified as B2021/685. The application was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the 30-day period for filing an application for review should be extended beyond the statutory time limit. The union argued that there were exceptional circumstances justifying an extension, such as delays in receiving relevant documents and the complexity of the decision. The court was required to weigh these circumstances against the statutory provisions and consider whether the extension was justified under the relevant legislation.

The court considered the evidence and submissions presented by both parties. It held that the union had not demonstrated exceptional circumstances that warranted an extension of the 30-day period. The union's arguments regarding delays in receiving documents and the complexity of the decision were not deemed sufficient to justify an extension. The court emphasised the importance of adhering to statutory time limits and the principle that extensions should be the exception rather than the rule. Consequently, the application to extend the 30-day period was dismissed.

No further orders were made by the court in this matter. The decision stands as a reminder of the importance of strict compliance with statutory time limits in administrative law proceedings, and the limited circumstances in which extensions may be granted.

Australian Municipal, Administrative, Clerical and Services Union v Sydney Trains

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established