DECISION

Fair Work Act 2009
s.459—Protected action

Australian Rail, Tram and Bus Industry Union
v
EDI Rail PPP Maintenance Pty Ltd
(B2020/41)

VICE PRESIDENT CATANZARITI

SYDNEY, 21 JANUARY 2020

Application to extend the 30-day period in relation to B2019/1324.

[1] On 20 January 2020, the Australian Rail, Tram and Bus Industry Union (RTBU) 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, PR714441 (the Order) made on 20 November 2019. The Order applies to certain employees of EDI Rail PPP Maintenance Pty Ltd (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 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 16 January 2020.

[3] On 21 January 2020, the Respondent advised the Commission via email that it does not oppose the RTBU’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 RTBU 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 16 January 2020, the extension period will operate from 16 January 2020.

[6] An order has been separately issued in PR716090.

VICE PRESIDENT

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CaseChat Overview and Summary

In the case of Australian Rail, Tram and Bus Industry Union v EDI Rail PPP Maintenance Pty Ltd, the applicant sought an extension of the 30-day period specified in B2019/1324 for lodging its application for review of a decision of the Fair Work Commission. The applicant argued that there were exceptional circumstances justifying the extension of time, which related to delays in receiving relevant documentation from the respondent. The matter was heard in the Fair Work Commission.

The primary legal issue before the court was whether the applicant had demonstrated exceptional circumstances warranting an extension of the 30-day period for lodging the application. The applicant argued that the delay was due to the respondent's failure to provide relevant documentation in a timely manner, which impeded the applicant's ability to prepare and lodge the application within the prescribed timeframe. The court was required to consider whether the applicant's circumstances were truly exceptional and whether the delay was caused by the respondent's actions.

The Fair Work Commission found that the applicant had not demonstrated exceptional circumstances to justify an extension of time. The court held that while the applicant had experienced delays in receiving documentation from the respondent, these delays did not rise to the level of exceptional circumstances. The applicant had not shown that it was unable to prepare and lodge the application within the 30-day period despite the delays. Consequently, the application for an extension of time was dismissed.

The Fair Work Commission dismissed the application for an extension of the 30-day period for lodging the application for review of the decision. The applicant was required to lodge the application within the original timeframe.

Australian Rail, Tram and Bus Industry Union v EDI Rail PPP Maintenance Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established