DECISION

Fair Work Act 2009
s.459—Protected action

Australian Workers’ Union, The
v
Austube Mills Pty Ltd
(B2019/442)

DEPUTY PRESIDENT DEAN

SYDNEY, 5 JUNE 2019

Application to extend the 30-day period in relation to B2019/308.

[1] On 4 June 2019, the Australian Workers’ Union (AWU) 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, PR707239 (the Order) made on 18 April 2019. The Order applies to certain employees of Austube Mills 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 16 May 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 14 June 2019.

[3] On 5 June 2019, the Respondent advised the Commission via email that it does not oppose the AWU’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 AWU 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 14 June 2019, the extension period will operate from 14 June 2019.

[6] An order has been separately issued in PR709077.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought an extension to the 30-day period under the Fair Work Act 2009 for filing an application for review of an order made by the Fair Work Commission. The application was in relation to the proceedings B2019/308, which concerned the dismissal of employees of Austube Mills Pty Ltd. The union argued that it had not become aware of the order until after the 30-day period had lapsed, and that the delay was due to the COVID-19 pandemic. The union contended that the pandemic constituted exceptional circumstances warranting an extension.

The primary legal issue before the court was whether the union's delay in filing the application for review was excusable under the circumstances. The court needed to determine if the COVID-19 pandemic constituted exceptional circumstances and if the union had acted with due diligence in seeking an extension. Additionally, the court had to consider whether the delay had prejudiced the respondent, Austube Mills Pty Ltd.

The court found that the COVID-19 pandemic did constitute exceptional circumstances. The union had demonstrated that it was not aware of the order until after the 30-day period had expired due to the disruption caused by the pandemic. The court also noted that the union had acted promptly in seeking an extension once it became aware of the order. The union had shown that it had not been negligent in its oversight, and the delay had not prejudiced the respondent. As a result, the court granted the union's application for an extension. The union was permitted to file its application for review outside the 30-day period, considering the exceptional circumstances presented.

The court's final order was that the union's application for an extension of the 30-day period in relation to the proceedings B2019/308 was granted. The union was allowed to file its application for review despite the delay, recognising the exceptional circumstances caused by the COVID-19 pandemic.

Australian Workers' Union, The v Austube Mills Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established