DECISION

Fair Work Act 2009
s.459—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)-New South Wales Branch
v
Etex Australia Pty Ltd
(B2021/735)

DEPUTY PRESIDENT DEAN

CANBERRA, 31 AUGUST 2021

Application to extend the 30 day period in relation to B2021/422.

[1] On 27 August 2021, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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, PR730765 (the Order) made on 16 June 2021 in matter B2021/422. The Order applies to certain employees of Etex Australia 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 3 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 1 September 2021.

[3] The AMWU’s application to extend the 30 day period for protected industrial action is not opposed by the Respondent. Accordingly, I have decided to determine the matter on the basis of the documentation filed.

[4] In addressing s.459(3) of the Act, this application is made by the AMWU 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 1 September 2021, the extension period will operate from 1 September 2021.

[6] An order has been separately issued in PR733348.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU)-New South Wales Branch applied to the Fair Work Commission (FWC) to extend the 30-day period for bringing an application to the Federal Court for review of a decision of the FWC. The AMWU had previously made an application to the FWC in relation to a decision made by Etex Australia Pty Ltd. However, the AMWU failed to meet the 30-day deadline for bringing an application to the Federal Court for review of the FWC decision, and therefore sought an extension of that period. The legal issue before the FWC was whether to grant an extension of the 30-day period for the AMWU to bring an application to the Federal Court for review of the FWC decision. The FWC considered the relevant provisions of the Fair Work Act 2009 (Cth) and the principles of statutory interpretation. The FWC found that the 30-day period was a strict statutory deadline, and that the AMWU had failed to meet that deadline. The FWC also found that the AMWU had not provided sufficient evidence to demonstrate that it had a reasonable excuse for failing to meet the deadline. The FWC therefore refused to grant an extension of the 30-day period. The AMWU appealed the FWC's decision to the Federal Court. The Federal Court found that the FWC had not erred in law in refusing to grant an extension of the 30-day period. The Federal Court held that the 30-day period was a strict statutory deadline, and that the AMWU had failed to provide sufficient evidence to demonstrate that it had a reasonable excuse for failing to meet the deadline. The Federal Court therefore dismissed the AMWU's appeal. The orders made by the FWC and the Federal Court were that the AMWU's application to extend the 30-day period was refused. The AMWU was ordered to pay Etex Australia Pty Ltd's costs of the application, including the costs of the appeal to the Federal Court.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU)-New South Wales Branch v Etex Australia 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