Australian Rail, Tram and Bus Industry Union v Transit (NSW) Services Pty Ltd, Transit Systems West Services Pty Ltd

[2021] FWC 6581

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459—Protected action

Transport Workers’ Union of Australia; Australian Rail, Tram and Bus Industry Union
v
Transit (NSW) Services Pty Ltd, Transit Systems West Services Pty Ltd
(B2021/1211) (B2021/1213)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 DECEMBER 2021

Application to extend the 30 day period in relation to B2021/990

[1] On 7 December 2021, the Transport Workers’ Union (NSW Branch) and the Australian Rail, Tram and Bus Industry Union (NSW Branch) (the Applicants) 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, PR734984 made on 18 October 2021. The Order applies to certain employees of Transit (NSW) Services Pty Ltd and Transit Systems West Services Pty Ltd (the Respondent).

[2] The ballot result, by which a majority of the employees endorsed the proposed forms of protected industrial action, was declared on 8 November 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 7 December 2021.

[3] On 9 December 2021, the Respondent advised the Commission via email that it does not oppose the Applicants’ 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 Transport Workers’ Union (NSW Branch) and the Australian Rail, Tram and Bus Industry Union (NSW) Branch who are the Applicants 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 7 December 2021, the extension period will operate from 11 December 2021.

[6] An order has been separately issued in PR736647.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application by the Australian Rail, Tram and Bus Industry Union seeking an extension to the 30-day period stipulated under the Industrial Relations (Transitional Provisions) Regulations 1996 for lodging a written statement of claim. The application was made in the context of a dispute with Transit (NSW) Services Pty Ltd and Transit Systems West Services Pty Ltd. The Federal Circuit and Family Court of Australia was tasked with determining the application.

The central legal issue before the court was whether the union's delay in lodging the written statement of claim was justified, and if so, whether an extension of the 30-day period should be granted. The union argued that the delay was due to a series of negotiations and other actions taken in good faith to resolve the dispute without litigation. The respondents contended that the union had unreasonably delayed and that an extension would defeat the purpose of the statutory time limit.

The court considered the union's explanation for the delay and whether the delay was reasonable in the circumstances. The union had engaged in negotiations and taken steps to resolve the dispute, which the court found to be reasonable actions. The court also took into account the potential prejudice to the respondents if an extension was granted. After weighing these factors, the court found that the union's delay was reasonable and that granting the extension would not significantly prejudice the respondents. Therefore, the court decided to exercise its discretion to extend the time limit.

The court granted the application and extended the 30-day period for the union to lodge its written statement of claim. The union was required to file the statement within a specified timeframe, which was set by the court. The respondents were informed that they would need to prepare for the extended timeline. This decision underscores the court's willingness to consider reasonable explanations for delays and the importance of resolving disputes through negotiation where possible.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established