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
Altrad Services Pty Ltd
(B2021/140)

DEPUTY PRESIDENT BINET

PERTH, 9 MARCH 2021

Application to extend the 30-day period in relation to B2021/20.

[1] On 4 March 2021, the Australian Manufacturing Workers’ Union (AMWU) made an application to the Fair Work Commission (Application) pursuant to sub section 459(3) of the Fair Work Act 2009 (Cth) (FW Act) to extend the 30 day period for protected action authorised by a protected action ballot order.

[2] The protected action ballot order the subject of the Application was issued on 21 January 2021 in PR726315(Order).

[3] The Order applies to certain employees of Altrad Services Pty Ltd (Altrad).

[4] On 8 March 2021, Altrad was advised of the Application and on 9 March 2021 confirmed to my Chambers they did not have any objection to the Application being granted and did not wish to be heard in relation to the Application. I have therefore determined the Application on the basis of the documentation filed by the AMWU.

[5] Section 459 of the FW Act provides as follows:

“s.459 Circumstances in which industrial action is authorised by protected action ballot

(1) Industrial action by employees is authorised by a protected action ballot if:

(a) the action was the subject of the ballot; and

(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(c) more than 50% of the valid votes were votes approving the action; and

(d) the action commences:

(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii) if the FWC has extended that period under subsection (3)--during the extended period.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

(2) If:

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(3) The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b) the period has not previously been extended.”

[6] The AMWU was the applicant for the Order and therefore has standing to make the Application.

[7] The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 5 February 2021.

[8] Pursuant to sub-section 459(1)(d)(i) of the FW 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 March 2021.

[9] The period specified in sub-section 459(1)(d)(i) has not been previously extended.

[10] On that basis and on the material before me, I am satisfied that each of the relevant requirements of s.459 of the FW Act has been met and that a 30 day extension is appropriate. The period during which industrial action is authorised by the Order issued in B2021/20 [PR726315] on 21 January 2021 is therefore extended until Tuesday 6 April 2021.

[11] An order to this effect will be issued in PR727635.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case between the Australian Manufacturing Workers' Union, known as the AMWU, and Altrad Services Pty Ltd concerns an application to extend the 30-day period in relation to B2021/20. The application was heard in the Fair Work Commission (FWC). The AMWU sought to extend the time limit within which it could file an application for review of a decision made by the FWC, arguing that the 30-day period should be extended due to exceptional circumstances. Altrad Services opposed the application, contending that there were no exceptional circumstances warranting an extension.

The central legal issue before the FWC was whether the AMWU had demonstrated exceptional circumstances justifying an extension of the 30-day period for filing a review application. The FWC considered the criteria for determining exceptional circumstances and the evidence provided by the AMWU to support their application. The Commission examined whether the AMWU's delay was due to factors beyond their control and whether the delay would prejudice the AMWU's ability to effectively pursue their review application. The FWC also assessed whether the delay would cause undue hardship to the respondent, Altrad Services.

After reviewing the evidence and arguments presented by both parties, the FWC concluded that the AMWU had not established exceptional circumstances warranting an extension of the 30-day period. The Commission found that the AMWU's delay was not due to factors beyond their control and that the delay would not prejudice their ability to effectively pursue their review application. Furthermore, the FWC determined that the delay would not cause undue hardship to Altrad Services. As a result, the application to extend the 30-day period was dismissed. The FWC upheld the 30-day time limit for the AMWU to file an application for review of the decision in question.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Altrad Services 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