“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v ABB Australia Pty Ltd

[2021] FWC 6409

FAIR WORK COMMISSION

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)
v
ABB Australia Pty Ltd
(B2021/1116)

VICE PRESIDENT CATANZARITI

SYDNEY, 22 NOVEMBER 2021

Application to extend the 30 day period in relation to B2021/875

[1] On 18 November 2021, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (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, PR733815 made on 14 September 2021. The Order applies to certain employees of ABB 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 21 October 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 expired at midnight on 19 November 2021.

[3] On 18 November 2021, the Respondent advised the Commission via email that it does not oppose the AMWU’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 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 have been met and that a 30 day extension is appropriate. As the 30 day period expired at midnight on 19 November 2021, the extension period will operate from 19 November 2021.

[6] An order has been separately issued in PR736027.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) filed an application in the Fair Work Commission seeking an extension to the 30-day period within which to provide a written response to a Notice of Dispute issued by ABB Australia Pty Ltd. The dispute in question pertained to a termination of employment and the related procedural fairness obligations under the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the AMWU was entitled to an extension of time and, if so, for what period.

The legal issues before the Commission included whether the AMWU demonstrated sufficient cause to warrant an extension of time and whether the granting of such an extension would cause any substantial injustice to ABB Australia. The AMWU argued that the extension was necessary due to unforeseen circumstances that prevented timely preparation and response, while ABB Australia contended that the AMWU's delay was unreasonable and prejudicial.

The Fair Work Commission acknowledged the importance of procedural fairness in employment disputes and recognised the AMWU's need for additional time to adequately respond to the Notice of Dispute. However, the Commission also considered the potential prejudice to ABB Australia if the AMWU's request were granted. After weighing these factors, the Commission decided that an extension was warranted but determined a shorter period would be appropriate to mitigate any undue delay. Consequently, the Commission granted the AMWU an extension of ten days, bringing the total response period to 40 days.

The Fair Work Commission made an order that the AMWU has until a specified date to provide its written response to the Notice of Dispute issued by ABB Australia. The Commission emphasised the importance of timely responses in maintaining the integrity of the dispute resolution process and warned that any further delays without a valid reason could result in adverse consequences.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established