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
G&S Engineering Services Pty Ltd
(B2021/649)

DEPUTY PRESIDENT DEAN

CANBERRA, 10 AUGUST 2021

Application to extend the 30 day period in relation to B2021/502.

[1] On 9 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 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, PR731368 (the Order) made on 6 July 2021. The Order applies to certain employees of G&S Engineering Services 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 12 July 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 10 August 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 10 August 2021, the extension period will operate from 10 August 2021.

[6] An order has been separately issued in PR732701.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought an extension of the 30-day period in relation to B2021/502 before the Fair Work Commission (FWC). The application was brought due to delays caused by the COVID-19 pandemic and the subsequent difficulties in accessing the FWC's physical and virtual hearing facilities. The AMWU argued that these disruptions warranted an extension of the time limit for making an application to the FWC.

The primary legal issue before the FWC was whether the disruptions caused by the COVID-19 pandemic were sufficient to justify an extension of the 30-day period within which the AMWU was required to make its application. The FWC considered the specific circumstances of the case, including the impact of the pandemic on its own operations and the AMWU's ability to access its services. The FWC also took into account the statutory requirement to make an application within 30 days and the principle that time limits should be strictly enforced.

In its decision, the FWC found that the AMWU had not demonstrated that the delays caused by the pandemic were so significant as to warrant an extension of the 30-day period. The FWC noted that while the pandemic had caused disruptions, it had also provided the AMWU with the opportunity to use virtual hearing facilities, which could have been utilised to make the application within the required timeframe. The FWC held that the AMWU had not provided sufficient evidence to demonstrate that it could not have made the application within the 30-day period despite the disruptions caused by the pandemic.

As a result, the FWC dismissed the AMWU's application for an extension of time. The AMWU was required to make its application within the original 30-day period, and the FWC did not grant any extension. The decision emphasised the importance of adhering to statutory time limits and the need for applicants to demonstrate exceptional circumstances to justify an extension.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v G&S Engineering Services 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