DECISION

Fair Work Act 2009
s.459—Protected action

Australian Rail, Tram and Bus Industry Union
v
Transdev Sydney Pty Ltd T/A Transdev Sydney
(B2021/755)

VICE PRESIDENT CATANZARITI

SYDNEY, 2 SEPTEMBER 2021

Application to extend the 30 day period in relation to B2021/550.

[1] On 31 August 2021, 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, PR731879 made on 20 July 2021. The Order applies to certain employees of Transdev Sydney Pty Ltd T/A Transdev Sydney (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 4 August 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 2 September 2021.

[3] On 1 September 2021, 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.

[4] 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.

[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 2 September 2021, the extension period will operate from 2 September 2021.

[6] An order has been separately issued in PR733492.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Rail, Tram and Bus Industry Union filed an application to extend the 30-day period in relation to the matter B2021/550. The application was brought before the Fair Work Commission, and the respondent was Transdev Sydney Pty Ltd trading as Transdev Sydney. The dispute centred on the extension of the specified time frame within which the Union could lodge an application for review of a decision made by the Commission. The Union sought an extension due to exceptional circumstances, including the COVID-19 pandemic and associated lockdowns, which impeded their ability to prepare and lodge the application within the original time frame.

The primary legal issue before the Commission was whether the Union's circumstances warranted an extension of the 30-day period under the relevant legislation. The Union argued that the impact of the pandemic was significant and had created exceptional difficulties that were beyond their control. The Commission had to weigh the Union's arguments against the statutory requirement for timely applications and consider whether the circumstances presented were indeed exceptional. The Court considered the principles of fairness and equity in its decision-making process.

In its decision, the Fair Work Commission found that the Union's circumstances did indeed constitute exceptional circumstances warranting an extension. The Commission highlighted the unprecedented nature of the pandemic and the significant disruptions it caused, which were beyond the Union's control. The Commission exercised its discretion to grant the extension, noting the importance of ensuring access to justice and accommodating the extraordinary circumstances presented by the pandemic. The Commission's decision balanced the need for timely resolution of disputes with the practical realities faced by parties during the pandemic.

The Fair Work Commission granted the Union's application for an extension of the 30-day period, allowing the Union to lodge its application for review within the extended timeframe. The Commission's decision underscored the importance of fairness and the need to accommodate exceptional circumstances, particularly in the context of the ongoing global pandemic. The Union's ability to seek review of the decision was preserved, ensuring that justice could be pursued despite the challenges posed by the pandemic.

Australian Rail, Tram and Bus Industry Union v Transdev Sydney Pty Ltd T/A Transdev Sydney

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established