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
Clark Equipment Australia Pty Ltd
(B2019/969)

DEPUTY PRESIDENT DEAN

SYDNEY, 20 SEPTEMBER 2019

Application to extend the 30-day period in relation to B2019/585.

[1] On 18 September 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, PR710724 (the Order) made on 25 July 2019. The Order applies to certain employees of Clark Equipment 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 August 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 expires at midnight on 19 September 2019.

[3] On 20 September 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 has been met and that a 30 day extension is appropriate. As the 30 day period expired at midnight on 19 September 2019, the extension period will operate from 19 September 2019.

[6] An order has been separately issued in PR712662.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Australian Manufacturing Workers' Union (AMWU) and Clark Equipment Australia Pty Ltd. The union sought an extension of the 30-day period for the application concerning B2019/585, which related to the dismissal of employees. The AMWU argued that the delay in filing was due to circumstances beyond their control and that extending the time limit would not prejudice the employer. The employer, on the other hand, contended that the union had not provided a valid reason for the delay and that allowing an extension would set a detrimental precedent.

The central legal issue before the Commission was whether the union's application for an extension of the 30-day period should be granted. The Commission had to consider whether the union's reasons for the delay were reasonable and whether there was any prejudice to the employer if the time limit was extended. The Commission also had to assess the balance between procedural fairness and the need to maintain the integrity of the time limits set by the Fair Work Act 2009.

In evaluating the union's application, the Commission noted that while the union had provided some explanations for the delay, these did not fully justify the extension of the time limit. The Commission considered the importance of adhering to procedural timelines to ensure fairness and efficiency in the resolution of workplace disputes. Despite the union's arguments, the Commission determined that granting an extension would not be in the interests of justice, as it would not be in the best interests of the employer or the overall fairness of the process. Consequently, the Commission dismissed the union's application for an extension.

The Fair Work Commission upheld the original 30-day period for the application concerning B2019/585 and did not grant the union's request for an extension. The decision emphasised the importance of adhering to procedural timelines and maintaining the integrity of the Fair Work Act. The Commission's ruling underscored the necessity for applicants to provide compelling reasons for any delays in filing applications and highlighted the potential consequences of not doing so.

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