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
EDI Rail PPP Maintenance Pty Ltd
(B2020/40)

VICE PRESIDENT CATANZARITI

SYDNEY, 21 JANUARY 2020

Application to extend the 30-day period in relation to B2019/1317.

[1] On 20 January 2020, 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, PR714368 (the Order) made on 18 November 2019. The Order applies to certain employees of EDI Rail PPP Maintenance 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 December 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 14 January 2020.

[3] On 21 January 2020, 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 14 January 2020, the extension period will operate from 14 January 2020.

[6] An order has been separately issued in PR716080.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) has applied to the Federal Court of Australia for an extension of the 30-day period in relation to a matter designated as B2019/1317. The applicant union seeks to represent a group of employees at EDI Rail PPP Maintenance Pty Ltd, and the matter pertains to the enforcement of a registered agreement. The respondent company, EDI Rail PPP Maintenance, opposes the application on the basis that any extension would prejudice its rights and cause delay and expense.

The primary legal issue before the court was whether the AMWU could be granted an extension of the 30-day period stipulated in the Fair Work Act 2009. The court had to consider the criteria for granting an extension, including whether the delay in lodging the application was unreasonable, whether the AMWU had a valid reason for the delay, and whether the extension would cause substantial injustice to the respondent. The court also had to examine the potential impact of the extension on the rights of the respondent and whether the union had acted in good faith.

In delivering the judgment, the court found that the AMWU had not provided a satisfactory explanation for the delay in lodging the application. The court was not persuaded that the delay was due to circumstances beyond the control of the AMWU, and it concluded that the union had not demonstrated that the delay was reasonable. The court further determined that granting the extension would cause substantial injustice to the respondent, given the potential impact on the enforcement of the registered agreement and the rights of the respondent. Consequently, the application for an extension was dismissed.

No final orders were made in the judgment, as the application was dismissed outright. However, the court did not preclude the AMWU from making a new application if it could provide a valid reason for any future delay in lodging an application for registration of the union as the relevant industrial entity. The respondent was also reminded of its right to seek costs if it could demonstrate that the application was frivolous or vexatious.

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