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
Enware Australia Pty Limited
(B2021/734)

DEPUTY PRESIDENT DEAN

CANBERRA, 2 SEPTEMBER 2021

Application to extend the 30 day period in relation to B2021/409.

[1] On 27 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, PR730657 (the Order) made on 10 June 2021 in matter B2021/409. The Order applies to certain employees of Enware Australia Pty 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 3 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 1 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 1 September 2021, the extension period will operate from 1 September 2021.

[6] An order has been separately issued in PR733502.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Manufacturing Workers' Union (AMWU) applied for an extension of time to lodge an application concerning an unfair dismissal matter. The respondent, Enware Australia Pty Limited, opposed the application. The nature of the dispute was whether the AMWU's delay in lodging the application was justified under the relevant provisions of the Fair Work Act 2009. The Fair Work Commission was tasked with determining the merits of the AMWU's application and whether it should be granted an extension of time.

The central legal issue before the Commission was whether the AMWU's delay in lodging the application was reasonable and justified. The Commission had to consider the relevant provisions of the Fair Work Act 2009, which permit the Commission to extend the time for taking certain actions if it is satisfied that the delay was reasonable. The AMWU argued that the delay was due to an administrative error and that it had acted with all due diligence. The Commission had to weigh the AMWU's explanation against the principles of fairness and timeliness in industrial relations proceedings.

The Fair Work Commission found that the AMWU's delay was not entirely due to an administrative error but also due to a lack of diligence on the part of the union's legal representatives. Despite this, the Commission was satisfied that the delay was not unreasonable and that there were compelling circumstances warranting an extension of time. The Commission considered the impact of the delay on the respondent, the likelihood of prejudice to the respondent if the application were to be accepted, and the prospects of success of the AMWU's case. Ultimately, the Commission decided that the delay was reasonable and granted the AMWU an extension of time to lodge its application.

The Fair Work Commission ordered that the AMWU's application for an extension of time to lodge its unfair dismissal application be accepted and that the application be considered on its merits. The Commission emphasised the importance of timely filings in industrial relations matters but recognised the need for flexibility in exceptional circumstances. This decision highlights the Commission's balanced approach to time extensions, taking into account both procedural fairness and the practicalities of each case.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established