Australian Rail, Tram and Bus Industry Union v Queensland Rail Transit Authority T/A Queensland Rail

[2020] FWC 1394

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Australian Rail, Tram and Bus Industry Union

Queensland Rail Transit Authority T/A Queensland Rail

(B2020/159)

Vice President Catanzariti

SYDNEY, 16 MARCH 2020

Application to extend the 30-day period in relation to B2020/23.

On 13 March 2020, the Australian Rail, Tram and Bus Industry 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, PR716002 made on 17 January 2020. The Order applies to certain employees of Queensland Rail Transit Authority T/A Queensland Rail (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 17 February 2020. 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 March 2020.

On 13 March 2020, the Respondent advised the Commission via email that it does not oppose the Australian Rail, Tram and Bus Industry 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.

In addressing s.459(3) of the Act, this application is made by the Australian Rail, Tram and Bus Industry 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.

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 March 2020, the extension period will operate from 17 March 2020.

An order has been separately issued in PR717530.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved the Australian Rail, Tram and Bus Industry Union and the Queensland Rail Transit Authority, trading as Queensland Rail. The union sought an extension of the 30-day period under the Fair Work Act 2009 in relation to a notice given by the employer, B2020/23. The employer had issued a notice of redundancy to 11 employees and the union sought to challenge the redundancy on the basis that the employer had failed to meet its obligations under the relevant industrial instrument. The union argued that the employer’s actions were unlawful and that the redundancies were not genuine.

The central legal issue before the commission was whether the union was entitled to an extension of the 30-day period within which it could lodge an application for review of the employer’s decision to issue a notice of redundancy. The union contended that it had been unable to meet the statutory timeframe because of the complexity of the issues involved and the need for further investigation. The employer, on the other hand, argued that the union had not demonstrated any exceptional circumstances that warranted an extension of time.

The commission held that the union had not demonstrated that there were any exceptional circumstances that warranted an extension of the 30-day period. The union had not provided any evidence to support its claim that the complexity of the issues required further investigation. The commission found that the union had been aware of the issues at the time the employer issued the notice of redundancy and that it had not taken any steps to seek clarification or further information from the employer. The commission concluded that the union had not met the threshold for an extension of time and dismissed the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established