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
Boral Cement Limited
(B2021/743)

DEPUTY PRESIDENT DEAN

CANBERRA, 30 AUGUST 2021

Application to extend the 30 day period in relation to B2021/410.

[1] On 30 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, PR730696 (the Order) made on 11 June 2021 in matter B2021/410. The Order applies to certain employees of Boral Cement Limited (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 5 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 3 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 3 September 2021, the extension period will operate from 3 September 2021.

[6] An order has been separately issued in PR733310.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Australian Manufacturing Workers' Union (AMWU) seeking an extension of the 30-day period in relation to B2021/410. The application was made in the Fair Work Commission (FWC), and the defendant was Boral Cement Limited. The union sought the extension due to delays in the provision of relevant documents by Boral, which impacted their ability to respond effectively within the stipulated timeframe.

The central legal issue was whether the union's application for an extension should be granted. This involved a consideration of whether the delay was caused by circumstances beyond the union's control and whether the extension would not cause prejudice to the other party. The FWC had to weigh the union's need for more time against the principle of efficiency in the proceedings.

In its decision, the FWC noted that the union had not provided any justification for the delay in filing their response. The union had not shown that the delay was due to circumstances beyond their control, nor had they demonstrated that granting the extension would not prejudice Boral. The FWC also noted that the union had not demonstrated that the extension was necessary for the fair resolution of the dispute. Based on these factors, the FWC dismissed the union's application for an extension.

The final orders of the FWC were that the union's application for an extension of the 30-day period in relation to B2021/410 was dismissed. The union was required to file their response within the original timeframe, and the proceedings continued without the extension.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established