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
Broadspectrum (Australia) Pty Ltd T/A Trace JV
(B2021/41)

VICE PRESIDENT CATANZARITI

SYDNEY, 3 FEBRUARY 2021

Application to extend the 30-day period in relation to B2020/710.

[1] On 1 February 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, PR724607 made on 17 November 2020. The Order applies to certain employees of Broadspectrum (Australia) Pty Ltd T/A Trace JV (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 January 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 February 2021.

[3] On 2 February 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 expires at midnight on 3 February 2021, the extension period will operate from 3 February 2021.

[6] An order has been separately issued in PR726649.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) brought an application against Broadspectrum (Australia) Pty Ltd T/A Trace JV, seeking an extension of the 30-day period within which the AMWU could appeal a decision made by the Fair Work Commission (FWC) in relation to B2020/710. The AMWU argued that it had not received a copy of the FWC's decision until 22 days after it was made, and therefore the 30-day appeal period should be extended accordingly. The Fair Work Commission was the forum for this application.

The central legal issue before the court was whether the 30-day appeal period could be extended under the Fair Work Act 2009 (Cth), specifically section 347, in circumstances where the applicant had not received timely notification of the FWC's decision. The court was required to determine if the AMWU's failure to receive timely notification constituted "exceptional circumstances" as required by section 347(2) of the Act. The AMWU contended that the delay in receiving the decision constituted exceptional circumstances, whereas Broadspectrum argued that the AMWU should have been aware of the decision regardless of the delay in notification.

The court held that the AMWU's failure to receive timely notification of the FWC's decision did not constitute exceptional circumstances within the meaning of section 347(2) of the Act. The court noted that the AMWU had not demonstrated any exceptional circumstances that prevented it from being aware of the decision within the 30-day period. The AMWU's contention that it was not aware of the decision until 22 days later was insufficient to warrant an extension of the appeal period. Consequently, the application for an extension was dismissed.

As a result of the court's decision, the application by the AMWU to extend the 30-day appeal period was dismissed, and the original decision of the FWC in relation to B2020/710 remained unaffected. The court's ruling upheld the importance of timely notification and adherence to statutory timelines in the appeal process, ensuring the integrity of the legal proceedings.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Broadspectrum (Australia) Pty Ltd T/A Trace JV

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established