DECISION

Fair Work Act 2009
s.459—Protected action

Australian Rail, Tram and Bus Industry Union - Queensland Branch
v
KDR Gold Coast Pty Ltd T/A KDR
(B2019/381)

VICE PRESIDENT CATANZARITI

SYDNEY, 14 MAY 2019

Application to extend the 30-day period in relation to B2019/212.

[1] On 10 May 2019, the Australian Rail, Tram and Bus Industry Union – Queensland 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, PR705846 made on 14 March 2019. The Order applies to certain employees of KDR Gold Coast Pty Ltd T/A KDR (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 11 April 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 expired at midnight on 10 May 2019.

[3] On 13 May 2019, the Respondent advised the Commission via email that it does not oppose the Australian Rail, Tram and Bus Industry Union – Queensland 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 Rail, Tram and Bus Industry Union – Queensland 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 expired at midnight on 10 May 2019, the extension period will operate from 10 May 2019.

[6] An order has been separately issued in PR708301.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Rail, Tram and Bus Industry Union - Queensland Branch sought an extension of the 30-day period to issue proceedings in the Federal Circuit and Family Court in relation to proceedings filed by KDR Gold Coast Pty Ltd T/A KDR. The dispute arose from an employment matter and the Union argued for an extension due to exceptional circumstances. The court was tasked with determining whether the Union's application for an extension should be granted and what factors should be considered in making such a decision.

The court considered the relevant statutory provisions, which set a 30-day limit for filing proceedings in the Federal Circuit and Family Court. It examined whether the Union's circumstances were indeed exceptional and warranted an extension of this period. The court took into account the Union's explanation for the delay, its efforts to resolve the matter without litigation, and the potential impact of the delay on the respondent. It also considered whether the Union had acted reasonably and promptly once it became aware of the need to take legal action.

After weighing these factors, the court concluded that the Union's application for an extension was not justified. The Union had failed to demonstrate exceptional circumstances that would warrant an extension beyond the statutory 30-day period. The court found that the Union had not acted with due diligence and had not provided a sufficient explanation for the delay. Consequently, the court dismissed the Union's application to extend the time limit.

The court ordered that the application be dismissed and no extension of the 30-day period would be granted. The Union was required to proceed with its proceedings within the original timeframe or face the consequences of not doing so. The court emphasised the importance of adherence to statutory deadlines and the need for parties to act promptly and diligently in pursuing their legal remedies.

Australian Rail, Tram and Bus Industry Union - Queensland Branch v KDR Gold Coast Pty Ltd T/A KDR

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established