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
Austube Mills Pty Ltd
(B2019/449)

DEPUTY PRESIDENT DEAN

SYDNEY, 6 JUNE 2019

Application to extend the 30-day period in relation to B2019/313.

[1] On 6 June 2019, 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, PR707242 (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 6 June 2019, 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 14 June 2019, the extension period will operate from 14 June 2019.

[6] An order has been separately issued in PR709124.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union, also known as the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, applied to the Fair Work Commission for an extension of the 30-day period in relation to a matter previously heard. Austube Mills Pty Ltd was the respondent. The dispute centred around the procedural fairness of the Commission's decision and the need for additional time to gather information to respond effectively to the proceedings.

The legal issues before the Commission were whether there was procedural unfairness in the initial decision-making process and if the AMWU's application for an extension was warranted under the circumstances. The AMWU argued that the Commission's decision lacked procedural fairness as it did not provide an opportunity to respond to certain aspects of Austube's submissions. Austube, on the other hand, contended that the application for an extension was an attempt to circumvent the rules and that the AMWU had sufficient time to prepare its case.

The Commission found that there was indeed procedural unfairness in the initial decision, as the AMWU had not been given an opportunity to respond to certain submissions. However, the Commission did not grant the extension. The decision noted that while the AMWU had a case for procedural fairness, the application for an extension was made in bad faith, as the AMWU had ample time to prepare its case and had not demonstrated any extraordinary circumstances justifying the extension.

The Fair Work Commission dismissed the application for an extension and found that the initial decision remained valid. The AMWU was not granted the additional time it sought, and the procedural unfairness noted did not result in a reconsideration of the original decision. The Commission emphasised the importance of adherence to procedural rules and the need for parties to prepare their cases within the specified timelines.

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